CIHM 
Microfiche 
Series 
(Monographs) 


ICMH 

Collection  de 
microfiches 
(monographies) 


m 


Canadian  Instituta  for  Historical  Microraproductiona  /  Institut  Canadian  da  microraproductiont  historiquas 


•  It 


Technical  and  Bibliographic  Notes  /  Notes  technique  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best  original 
copy  available  for  dinning.  Features  of  this  copy  which 
may  be  bibllographically  unique,  which  may  alter  any  of 
the  images  in  the  reproduction,  or  which  may 
significantly  change  Xhn  usual  method  of  filming  are 
checked  below. 


0 


D 
D 
D 

D 


Coloured  covers  / 
Couverture  de  couleur 


I     I  Covers  datr^^ged  / 

I — '  Couverture  endommag^ 

I     I  Covers  restored  and/or  lam,,  ,ated/ 

' — '  C  lUverture  restaur^  et/ou  pelliculee 

I     I  Cover  title  missing  /  Le  litre  de  couverture  manque 

I     j  Coloured  maps  /  Cartes  geographiques  en  couleur 

I     I  Coloured  ink  (i.e.  other  than  blue  or  black)  / 

—  Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

I     I  Coloured  plates  and/or  illustrations  / 

' — '  Planches  et/ou  illustrations  en  couleur 


Bound  with  other  material  / 
Relie  avec  d'autres  documdnts 

Only  edition  available  / 
Seule  edition  disponible 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin  /  La  reliure  serr^e  peut 
causer  de  I'ombre  ou  de  la  distorsion  le  long  de 
la  marge  interieure. 

Blank  leaves  cdded  during  restorations  may  appear 
within  the  text.  Whenever  possible,  these  have 
been  omitted  from  filming  /  II  se  peut  que  certaines 
pages  blanches  ajoutdes  lors  d'une  restauration 
apparaissent  dans  le  texte,  mais,  lorsque  cela  ^tait 
possible,  ces  pages  n'ont  pas  &&  filmies. 


L'Institut  a  microfilme  le  meilleur  examplaire  qu'il  lui  a 
ete  possible  de  se  procurer.  Les  details  de  cet  exem- 
plaire  qui  sent  peut  §tre  uniques  du  point  de  vue  bibli- 
ographique,  qui  peuvent  modifier  une  image  reproduite, 
ou  qui  peuvent  exiger  une  modifications  dans  la  meth- 
ode  normale  de  filmage  sent  indiques  ci-dessous. 

I     I      Coloured  pages  /  Pages  de  couleur 

I     I      Pages  damaged  /  Pages  endommagees 

I     I      Pages  restored  and/or  laminated  / 
— '      Pages  restaurees  et/ou  pellicultes 


0 

D 
D 
0 


D 


Pages  discoloured,  stained  or  foxed  / 
Pages  decolorees,  tachet^s  ou  piquees 

Pages  detached  /  Pages  detachees 

Showthrough  /  Transparence 

Quality  of  print  varies  / 
Quality  inegale  de  I'impression 

Includes  supplementary  material  / 
Comprend  du  materiel  supplementaire 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image  /  Les  pages 
totalement  ou  partiellement  obscursies  par  un 
feuillet  d'errata,  une  pelure,  etc..  ont  ete  filmees 
a  nouveau  de  fa;on  a  obtenir  la  meilleure 
image  possible. 

Opposing  pages  with  varying  colouration  or 
discolourations  are  filmed  twice  to  ensure  the 
best  possible  image  /  Les  pages  s'opposant 
ayant  des  colorations  variat>les  ou  des  decol- 
orations sont  filmees  deux  fois  afin  d'obtenir  la 
meilleur  image  possible. 


D 


Additionai  comments  / 
Commentaires  suppl^mentaires: 


Thill 
Cedo 

lOX 

wmis 
cumai 

filma 

<tMt 

ditt 
filmi 

Iwrtd 
•u  t* 
14X 

uctio 

IX  de 

n  ratio  chKkid  btlow/ 
rtduction  indiquc  ci-dessous 

itx 

ax 

nx 

»X 

J 

12X 

:6X 

2ax 

24  X 

28  X 

32  x 

Th*  COPY  f<lm(d  h*r*  hu  baan  raproduead  thanks 
to  tha  ganaroiity  of: 

National  Library  of  Canada 


L'anamplaira  film*  fut  raproduit  grica  i  la 
O*n*roiit*  da: 

Bibliotheque  nationale  du  Canada 


Tha  imaga*  appaaring  hara  ara  tha  bast  quality 
possibis  considaring  tha  condition  and  lagibility 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  spaciflcations. 


Original  copias  in  printad  papar  covara  ara  fllmad 
baglnning  with  tha  front  covar  and  andlng  on 
tha  last  paga  with  a  printad  or  illustratad  impraa- 
sion.  or  tha  bacli  covar  whan  appropriata.  All 
othor  original  copiaa  ara  fllmad  baglnning  on  tha 
first  paga  with  a  printad  or  illustratad  Impraa- 
sion,  and  anding  on  tha  last  paga  with  a  printad 
or  illustratad  improssion. 


Tha  laat  racordad  frama  on  aach  microficha 
shall  contain  tha  symbol  ^^  I  moaning  "CON- 
TINUED"), or  tha  symbol  y  (moaning  "END"), 
whichavar  applias. 


Las  imagas  suivantas  ont  M  raproduitas  svac  la 
plus  grand  soin.  compta  tanu  da  la  condition  si 
da  la  nanat*  da  I'axamplaira  filmi,  at  an 
eonformit*  avac  las  conditions  du  contrat  da 
fllmaga. 

Las  aiamplalrsa  originaux  dont  la  couvortura  an 
papiar  aat  imprimte  sont  fllmts  an  commancant 
par  la  pramiar  plat  at  an  tarmlnant  soil  par  la 
darnitra  paga  qui  compona  una  amprainta 
d'Imprasslon  ou  d'lllustration,  soit  par  la  lacond 
plat,  salon  la  eas.  Tous  las  autras  axamplairas 
originaux  sont  filmte  an  commancant  par  la 
pramitra  paga  qui  comporta  una  amprainta 
d'Impraasion  ou  d'lllustration  at  an  tarminant  par 
la  darnitra  paga  qui  comporta  una  talla 
amprainta. 

Un  das  symbolaa  suivants  spparaitra  sur  la 
darnlAra  imaga  da  chaqua  microficha.  salon  la 
cas:  la  symbols  ^^  signifia  "A  SUIVRE '.  la 
symbols  ▼  signifia  "FIN". 


Mapa,  platas.  charts,  ate.  may  ba  filmad  at 
diffarant  raduction  ratios.  Thosa  too  larga  to  ba 
antiraly  includad  in  ona  axposurs  sra  filmad 
baglnning  in  tha  uppar  iaft  hand  cornar.  laft  to 
right  and  top  to  bonom.  as  many  framaa  as 
raquirad.  Tha  following  diagrams  illustrata  tha 
mathod: 


Laa  cartas,  planchas.  tablaaux.  ate.  pauvant  itt» 
filmts  1  das  taux  da  rtduction  difftrsnts. 
Lorsqua  la  documant  ast  trop  grand  pour  itra 
raproduit  an  un  saul  clich*.  il  ast  film*  *  partir 
da  I'angla  supAriaur  gaucha.  da  gaucha  i  droita. 
at  da  haut  an  baa.  an  pranant  la  nombra 
d'imagas  nOcassairs.  Las  diagrammas  suivsnta 
illustrant  la  mathoda. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

MICROCOPY    RESOIUTION   TKT   CHART 

(ANSI  and  ISO  TEST  CHART  No    2l 


1.0    |if  1^ 

^^  iiiii 

ill  1.8 


I.I 


e  11^  11^ 


^     /APPLIED  IIVMGE    In. 


16ii  East   Uoin   ', 


MAGNA  CARTA 


AN  ADDRESS 

DELIVBHBD  BY 

William  Renwick  riddell,  ll.d., 

F.  R.  Hist.  Soc., 

Jutliee  of  the  Supreme  Court  of  Ontario. 


THE  LAW  ACADEMY  OF  PHILADELPHIA 


May  3,  1917 


/Hs-Z/tanw  /8>y>^l^k     ^ilUcOiU 


v^ 


K'fl 


MAGNA  CARTA 


AN  ADDRESS 

DILIVeilBD  lY 

WILLIAM    RENWICK    RIDDELL.  LL.D., 

F.  R.      isl.  Soc., 

JutllM  of  lh«  Supram*  Court  of  Oourio. 


THE  LAW  ACADEMY  OF  PHILADELPHIA 
May  3,  1917 


Pobliabnl  by 

Tht  Law  AMdcmy  ol  P1iirid«[phii 

1917 


J." 


■(  / 


Committee  on  Annual  Address 


I.  Smith  Raspin,  Chairman 
H.  EuQENE  Heine, 
T.  Henst  Walnut, 
Palmes  Watson, 
Samuel  W.  Woolfobd,  Jr., 
Edward  Seville  Smith, 

Ex-Officio. 


MAGNA  CARTA 

BY 

WILLIAM  RENWICK  RIDDELL,  LL.D., 
F.  R.  Hist  Soc., 

JustiM  of  the  Suprtn*  Court  of  Ontario, 


PROEM 

In  the  year  of  Grace,  twelve  hundred  and  fifteen, 
there  was  gathered  in  the  Meadow  of  Eunnymede  by 
the  Thames  between  Staines  and  Windsor,  a  "Con- 
gress into  an  extraordinary  session  because  there" 
were  "serious,  very  serious,  choices  to  be  made  and 
made  immediately." 

It  was  still  (even  in  England)  the  time  of  "the  old 
unhappy  days  when  the  people  were  nowhere  consulted 
by  their  rulers":  an  autocratic  King  claiming  to  rule 
by  Right  Divine  and  not  by  the  consent  of  the  governed, 
whose  acts  were  based  "only  in  the  selfish  designs  of  a 
Government  that  did  what  it  pleased,"  had  contemptu- 
ously disregarded  the  ancient  rights  of  his  people,  had 
repeatedly  for  his  own  interest  and  that  of  "little 
groups  of  ambitious  (and  greedy)  men  who  were  ac- 
customed to  use  their  fellow  men  as  pawns  and  tools," 
"put  aside  all  restraints  of  law  and  of  humanity,"  had 
violated  the  law  which  "by  painful  stage  after  stage" 
had  "been  built  up  with  meagre  enough  results  indeed 
after  all  was  accomplished  that  could  be  accompUshed, 
but  always  with  a  view,"  more  or  less  clear,  "of  what 
the  heart  and  conscience  of  mankind  demanded." 


Occasionally  and  for  a  time  "in  the  progress  of 
the  cruel  and  unmanly  business  *  *  *  ,  a  cer- 
tain degree  of  restraint  was  observed";  but  the  king 
had  gone  from  bad  to  worse,  "the  new  policy 
*  •  *  swept  every  restriction  aside"  and  the 
Government  had  "thrown  aside  all  considerations  of 
humanity  and  right,"  "put  aside  all  restraints  of  law 
or  of  humanity." 

The  Barons  of  England  with  the  higher  Clergy 
had  the  choice  to  submit  or  to  resist,  if  need  be  to  fight 
— the  choice  was  unhesitating — "We  will  not  choose 
the  path  of  submission  and  suffer  the  most  sacred 
rights  of  our  nation  and  our  people  to  be  ignored  or 
violated"— "we  are  *  •  *  of  the  champions 
of  the  rights  of  mankind" — "the  wrongs  against  which 
we  now  array  ourselves  are  not  common  wrongs ;  they 
cut  to  the  very  root  of  human  life"  and  all  that  makes 
life  worth  living.  "Our  object  *  '  *  is  to 
vindicate  •  •  •  justice  *  *  *  as 
against  selfish  and  autocratic  power  and  •  •  • 
henceforth  insure  the  observance  of"  that  principle; 
"we  are  now  about  to  accept  gage  of  battle  with  this 
natural  foe  of  liberty,  and  shall  if  necessary  spend  the 
whole  force  of  the  nation  to  check  and  nullify  its  pre- 
tensions and  its  power;"  "our  motive  will  not  be  re- 
venge or  the  victorious  assertion  of  the  physical  might 
of  the  nation  but  only  the  vindication  of  right,  of 
human  right." 

By  bitter  experience  they  knew  that  "no  auto- 
cratic Government  could  be  trusted  to  keep  faith 
*  *  *  or  observe  its  covenants,"  could  be  a 
partner  in  "a  league  of  honor"— broken  faith  had 


proved  to  them  that  they  must  be  prepared  to  enter 
upon  war,  that  they  might  be  "forced  into  it  because 
there"  was  "no  other  means  of  defending"  their 
rights.  They  knew,  too,  that  there  were  very  many 
foreigners  within  their  country,  brought  in  and  sup- 
ported by  their  foe,  that  the  king  in  his  autocratic 
Government  was  "backed  by  organized  force  which" 
was  "wholly  controlled  by"  his  "will  not  by  the  will 
of  the  people."  But  they  felt  that  "right  was  more 
precious  than  peace";  and  notwithstanding  that  there 
might  be  "many  months  of  fiery  trial  and  sacrifice 
ahead,"  they  mustered  their  forces  and  marched  to 
Runnymede,  dedicating  to  their  task  their  lives  and 
their  fortunes,  everything  that  they  had,  and  defying 
(he  "lawless  and  malignant  few"  who  would  for  their 
own  non-patriotic  reasons,  support  the  lawless  and 
tyrannical  violator  of  right. 

God  helping  them,  they  could  do  no  other. 

What  they  did  is  embodied  in  Magna  Carta,  the 
great  Charter  of  the  liberties  and  rights  of  all  Eng- 
lish speaking  peoples  and  powerful  in  its  influence, 
direct  or  indirect,  in  establishing  our  conceptions  of 
liberty  and  right  throughout  the  world. 

Nearly  seven  hundred  and  two  years  after  that 
memorable  Congress,  another  Congress  met  in  a  city 
upon  a  continent  unknown  to,  undreamt  of  by  John 
and  his  Barons,  to  consider  the  acts  of  a  World-crim- 
inal. The  results  of  the  work  of  that  Congress  are  as 
yet  in  great  measure  hidden  in  the  womb  of  time ;  but 
who  may  doubt  that  the  principles  inherent  in  Magna 
Carta  will,  through  the  efforts  and  the  sacrifices  of 
those  who  are  saturated  with  its  spirit — ^Americans, 


6 

thank  God,  taking  their  full  share-triumph  in  world 
affairs  and  international  law  aa  in  affairs  and  law 
between  man  and  manT 

We  Canadians,  joint  heritors  of  the  Great  Charter 
joyously  and  exultantly  welcome  our  American  breth- 
ren to  the  mighty,  the  last  struggle  for  democracy,  for 
international  justice,  right  and  good  faith,  the  Arma- 
geddon of  all  the  ages,  the  glory  and  the  pride  of  our 
peoples  who  as  they  live  so  would  they  die  for  "what- 
soever things  are  honest,  whatsoever  things  are  just 
whatsoever  things  are  of  good  report. "  We  know  that 
we  are  one  with  you  in  all  that  is  worth  while  and 
are  as  one  prepared  together  to  do  all  and  sacrifice 
aU  for  our  ideals  of  right  and  democracy. 

I  am  now  to  speak  of  that  Scrap  of  Paper  we  call 

"MAGNA  CARTA"'  • 

"Whatever  Magna  Carta  may  be  in  law,  whether 
a  treaty  between  king  and  subjects,  a  charter  or  grant 
from  the  king,  a  declaration  of  rights,  a  constitution, 
a  statute  or  what  not,  it  is  also  a  long  and  miscellaneous 
code  of  laws."' 

And  this  code  of  laws  has  been  appealed  to  in  all 
succeeding  generations  in  England  and  her  Colonies 
as  assuring  their  dearest  rights.  Sometimes,  indeed 
It  has  been  the  subject  of  rude  and  coarse  jibe-the' 
great  Cromwell  despised  or  affected  to  despise  Magna 
Carta,  and  Chief  Justice  Kelyng  did  not  hesitate  to 
imitate^.'    Cromwell,  however,  was  at  the  time 

•  Num«r.l.  „l„  to  the  notM  .iLchad  at  th.  .nd  of  th.  tert. 


indifferent  to,  as  he  was  above,  aU  law;  and  Kelyng'g 
life  and  conduct  were  at  all  times  a  scandal  to  the  King 
he  served  and  to  the  law  he  wag  supposed  to  admin- 
ister. 

In  most  instances,  the  mention  of  Magna  Carta 
was  received  with  respect  and  even  reverence;  and  to 
this  day  there  are  no  English  speaking  peoples  who  do 
not  take  pride  in  it. 

Much  of  it  has  been  repealed,  much  has  become 
obsolete  even  in  England,  much  never  was  applicable 
to  a  new  country  like  one  of  the  Thirteen  Colonies  or 
Canada;  but  the  spirit  of  that  wondrous  document 
lives  wherever  our  freedom  exists.     Other  nations 
have  their   own  conceptions   of  liberty,   their  own 
kultnr,  which  has  nothing  in  common  with  Magna 
Carta  and  to  which  the  principles  of  Magna  Carta  are 
as  foreign  as  they  are  to  the  Aleutians:  but  we 
*        *        *    who  speak  the  tongue 
That  Shakespeare  spake;  the  faith  and  morals  hold 
That  Milton  held, 
are  saturated  with  the  spirit  of  the  Charter,  it  is  part 
of  our  birthright— and  may  I  add  "We  must  be  free 
or  die"  in  part  for  that  very  reason.    So  proud  were 
our  ancestors  of  it  end  its  congener,  the  Carta  de 
Foresta,  that  Sir  Edward  Coke  in  the  Proeme  to  his 
Second   Institute    (which   contains   a   valuable   and 
learned  Commentary  on  the  Great  Charter)  says  that 
they   "have   been   confirmed,   established   and   com- 
manded to  be  put  into  execution  by  thirty-two  several 
Acts  of  Parliament  in  all."  * 

It  was  not  without  reason  that  many  American 
lawyers  of  the  highest  standing  united  two  years  ago 


8 

in  celebrating  the  Seventh  Centennial  Anniversary  of 
the  Sealing  of  the  Charter  by  King  John  at  Bunny- 
mede  on  June  19th,  1215.  For  the  Constitution  of  the 
United  States  is  implicitly  adumbrated  in  it  as  is  the 
Bill  of  Bights  of  1689. 

In  all  institutions  we  must  look  below  the  surface 
and  find  the  soul  underlying  the  form.  Not  quite  right 
was  he  who  said 

"For  forms  of  government  let  fools  contest, 

Whate'er  is  best  administer 'd  is  best"; ' 
many  law-abiding,  patriotic  Americans  would  fight  to 
the  death  before  they  would  submit  to  a  monarchy,  and 
many  law-abiding  and  patriotic  Canadians  would  fight 
to  the  death  against  a  republic.  But  there  is  morp  than 
a  grain  of  truth  in  Pope's  apothegm.  The  Canadian 
with  a  King  who  reigns  but  does  not  rule  and  the 
American  with  a  President  who  rules  but  does  not 
reign  have  the  same  conceptions  of  liberty,  the  same 
ideals  of  justice,  the  same  aspirations  toward  in- 
dividualistic freedom  of  act,  thought  and  speech,  com- 
bined with  a  state  repression  of  act  or  perhaps  even 
of  speech  noxious  to  the  community — freedom  accord- 
ing to  law. 

That  result  necessarily  follows  from  the  democ- 
racy of  those  peoples  which  for  want  of  a  better  term 
we  are  accustomed  to  call  the  Anglo-Saxon  peoples. ' 

Democracy  is  not  a  form  of  government  but  a  state 
of  thought. 

A  century  ago.  Upper  Canada  had  on  paper  almost 
the  same  form  of  government  as  Ontario  has  today — 
yet  a  century  ago  the  common  people  had  almost  no 
control  over  the  Administration,  today  the  Adminis- 


9 

tration  bows  and  mast  bow  to  the  people  in  everything, 
must  justify  every  act  to  the  electorate  or  cease  to  bo 
the  Administration. 

A  little  more  than  a  century  ago,  an  unwise  if 
conscientious  king  could  lose  to  the  Empire,  flourishing 
Colonies  which  desired  to  remain  loyal  if  they  could 
be  loyal  consistently  with  self-respect— Colonies  which 
did  not  set  out  to  separate  from  the  British  Crown 
but  which  were  forced  to  choose  between  being  loyal 
and  being  free.  Today,  no  king  would  venture  on  such 
a  policy — and  if  he  did  he  could  not  carry  it  into 
operation.  And  yet  the  constitution  of  the  Mother 
Country  is  not  altered  externally— but  the  whole  soul 
and  spirit  of  her  institutions  have  suffered  a  revo- 
lutionary change. 

It  is  not  alone  or  chiefly  in  the  letter  of  Magna 
Carta,  the  form  or  the  content  of  its  provisions  that 
we  are  to  look  to  discover  its  importance  and  revo- 
lutionary character  but  to  the  tendency,  the  implica- 
tion of  the  whole  magnificent  document. 

It  is  significant  that  it  was  wrung  by  force  from 
a  king  of  Norman  descent.  The  ancestors  of  the  Eng- 
lish people  had  before  the  Norman  Conquest  looked 
upon  their  kings  as  chosen  by  themselves  to  rule  over 
them;  and  the  noxious  absurdity  (according  to  our 
democratic  thought)  of  Divine  Right  had  scarcely  a 
footing  amongst  them.  When  Aethelred  the  Unready 
dl.spleased  his  people,  the  Witan  promptly  deposed  him 
and  later  recalled  him  on  his  promise  to  do  better— 
the  Saxon  King  was  a  President  for  life  subject  to 
recall. 

The  Norman  Conquest  set  back  the  hands  of  the 


10 

clock  for  centnries  in  this  as  in  many  other  essential! 
of  oivUization— as  we  understand  civilization.     The 
Norman  kingrs  claimed  by  conquest  although  they  did 
bolster  up  their  right  by  an  empty  and  formal  aoolaim 
by  the  people  of  England;  and  they  also  claimed 
the  throne  by  the  Grace  of  God,  that  is  by  Divine  Eight 
It  was  with  a  king  who  looked  upon  himself  as  the 
vicegerent  of  the  Almighty  that  the  Barons  had  to 
deal;  but  they  did  not  admit  that  they  were  traitors  to 
God  or  that  they  warred  against  Him.  The  language  of 
courtiers  is  proverbially  fulsome  with  flattery— the 
address  to  King  James  I,  four  hundred  year.s  later,  of 
the  translators  of  the  Authorized  Version  of  the  Bible, 
rouses  the  gorge  of  the  people  of  today— that  shamb-' 
Img  cowardly  king  was  like  "the  Sun  in  his  strength," 
whose  "confidence  and  resolution"  had  "so  bound  and 
firmly  knit  the  hearts  of  all  Your  Majesty's  loyal  and 
religious  people  unto  you  that  Your  very  name  is 
precious  among  them":  he  was  "that  sanctified  person 
who  under  God"  was  "the  immediate  Author  of  their 
true  happiness"- and  more  of  the  same  kind.    But 
these  very  translators  would  have  promptly  raised  the 
standard  of  rebellion  against  that  marvel  of  wisdom 
and  strength  if  he  had  attempted  to  aUow  his  zeal 
toward  the  House  of  God  so  much  lauded  by  them  to 
show  itself  in  favor  toward  the  "Popish  Persons  at 
home  or  abroad"  or  the  "self  conceited  Brethren  who 
run  their  own  ways,"  whom  they  so  reprobated. ' 

His  son,  Charles  I,  found  how  far  his  people  be- 
lieved in  Divine  Right  of  Kings  when  a  quarter  of  a 
century  later,  he  lost  his  head  literaUy,  having  long  be- 
fore lost  it  metaphorically— and  his  son  James  had  to 


11 

go  on  his  travel,  beoauie  he  pre.nmed  too  far  on  the 
forbearance  of  his  "loyal  eobjeoti." 

And,  too,  however  courtly  in  their  speech  toward 
King  John,  were  his  subjects,  they  did  not  hedtate  to 
employ  force  to  achieve  their  ends.    It  is  the  unhesi- 
tating  use  of  force  to  attain  their  rights  from  a  sover- 
eign, which  distinguishes  a  free  people  (as  we  under- 
stand  freedom)  from  an  abject  people.   No  matter  how 
strong,  learned,  pious  a  nation  may  be,  if  and  so  long 
as  it  beheves  that  its  sovereign  reigns  by  the  Ora^e 
of  God,  that  he  is  really  the  donee  of  a  power  of  which 
God  18  the  donor,  and  that  he  does  not  owe  his 
sovereignty  to  the  consent  of  his  8ubjeots-th.se  sub- 
jects are  not  freemen,  they  cannot  conscientiously  use 
force  against  him,  anything  they  wish  they  mav  ask 
for  but  not  demand,  anything  they  may  obtain  i  not 
a  right  but  a  gift  which  may  be  recalled-thev  are 
subjects  m  reality  as  we  British  are  subjects  in  name. 
With  kings  who  have  that  conception  of  their  posi- 
tion,  negotiation  may  be  successful  for  a  time  but,  as 
has  recently  been  pointed  out  in  a  Statp  Paper  of  tran- 
scendent importance  and  great  ability,  "No  autocratic 
power  could  be  trusted  to  keep  faith    *        *        •    or 
observe  its  covenants."  • 

Accordingly  the  Barons  using  force  as  they  did 
to  obtam  promises,  did  not  fail  to  provide  means  where- 
by these  promises  would  be  implemented-they  took 
possessi„n  of  the  City  of  London,  the  Archbishop  of 
Canterbury  (their  colleague),  of  the  Tower,  and  pro- 
vision was  made  for  the  election  of  twenty-five  Barons 
of  the  Kingdom  to  cause  the  terms  of  the  Charter  to  be 
observed. 


12 

Had  thii  provition  been  carried  into  effect  mnch  of 
the  Bubtequent  trouble  would  have  been  avoided;  fail- 
ing it,  England  had  again  and  again  to  experience  the 
Punica  fides  of  her  kings. 

PaBaing,  however,  from  that  unhappy  considera- 
tion, we  may  notice  that  it  ia  not  without  aignlficanco 
that  while  those  who  forced  the  Charter  from  an  un- 
willing king  were  Barons,  they  had  the  common  people 
with  them — inarticulate  as  these  were  and  for  some 
time  were  to  be  in  affairs  of  state,  the  commonalty 
of  London  secretly  agreed  to  open  their  gates  to  the 
Barons;  and  notwithstanding  that  King  John  secured 
himself  in  the  Tower,  the  City,  defying  his  vengeance, 
opened  Aldgate  and  the  reforming  Barons  marched  in 
thereat. 

True  it  is  that  most  of  the  provisions  of  the 
Charter  are  made  for  the  advantage  of  the  nobility  and 
their  '  'nants ;  but  underlying  the  form  there  is  ever 
found  the  principle  which  looks  forward  to  the  times 
vrbon  the  common  man  will  be  recognized  as  the  real 
object  of  the  State's  regard,  whose  well-being  must 
always  be  in  the  eye  of  the  State. 

The  first  thing  I  notice  is  the  set  of  Articles  con- 
cerning the  Courts.* 

It  is  impossible  for  a  stndent  of  the  ancient  law 
not  to  recognize  that  the  Royal  Courts  of  Justice  were 
considered  a  personal  appanage  of  the  king  and  that  a 
main  object  of  their  existence  was  to  secure  to  the  king 

*  Mj  rcferenen  are  to  the  Charter  at  given  in  Uiebard  Thornton  '■ 
"An  Historical  Eisaj  on  the  Magna  Charta,"  London,  1829,  which  ie 
the  treatiae  most  generally  available.  A  more  recent  work  is  HcKech. 
nte's  Magna  Carta,  Glasgow,  1915.  Sir  William  Blackstose's  sumptooni 
and  valuable  volumes  should  not  be  overlooked. 


u 


13 

•  •uffieiont  revenne.  Whatever  might  be  aaid  of  the 
local  conrta,  the  king 'a  conrta  were  a  coatly  luxury.* 
Being  preaidcd  over  by  conrtiera,  mombera  of  the 
houaehold  of  the  king,  theac  courta  naturally  followed 
the  king  in  all  hia  joumeya  throughout  the  realm — and 
if  there  ia  one  thing  more  noticeable  than  another  in 
the  ancient  kinga,  it  ia  their  conatant  journeying  from 
one  place  to  another.  Much  of  thia  wan  of  courae  due  to 
the  Royal  Prerogative  of  taking  for  the  king's  uae  any 
chattel  property  of  the  aubjcct  at  a  price  to  be  fixed 
by  the  king'a  officer.  Naturally  the  aupply  would  run 
out  at  the  place  at  which  the  court  waa  atationed ;  and 
purveyora  must  aeek  fresh  fields  and  pastures  new — 
and  the  court  would  move  again.  Or  it  might  be  that 
the  king  would  graciously  favor  one  of  Lia  aubjecta 
by  abiding  with  him  for  a  time,  the  glory  of  entertain- 
ing a  king  being  supposed  to  be  an  equivalent  for  the 
ruinous  expense.'' 

The  Royal  Courta  following  the  king,  the  auitort 
must  needs  do  the  same,  to  their  constant  uncertainty, 
their  frequent  inconvenience  and  their  occasional  un- 
doing. 

It  was  accordingly  provided  in  the  Charter  that 
that  court  or  portion  of  the  court  (I  do  not  enter  into 
contentious  mattera)  which  dealt  with  cauaea  between 
subjects  should  be  atationary;  and  cap.  XVII  was 
framed — "Communia  piacita  non  aequantur  curiam 
nostram  aed  teneantnr  in  aliqno  ccrto  loco."" 

This  was  the  first  definite  pronouncement  that  the 
courta  were  for  the  people's  convenience,  not  for  the 
king's  advantage. " 

And  our  courts  have  today  their  seat  at  some  fixed 


u 

pUc«,  oonvonieat  for  roitor.  and  not  whm  .  kin.  . 
pr..id.iit  or  .governor  may  chance  to  b.  for  the  iL. 
bting  or  may  direct  them  to  be  held. 

Proviiion  wat  al.o  made  for  trUl  eoorti  littini 
in  ..ch  County  fonr  time,  a  year,  th„.  bringing  ;S 

the  intolerable  bnrden  and  expenae  of  leaving  their 
own  County  and  traveling  to  We.tmia.ter  or  eUe- 
where  to  perform  their  functions. 

Little  advantage  would  be  derived  from  courts, 
wherever  they  might  sit,  if  the  judges  were  not  versed 
n  the  law  they  were  to  administer.  In  the  olden  time 
it  was  not  legal  knowledge  or  high  attainments  which 
procured  an  appomtment  as  Judge  or  even  Chief  Ju,. 
ucar-too  often  U  was  the  royal  favorite  who  became 
he  ,ud.c.al  officer,  not  that  he  might  do  justice  accord- 
ng  to  the  law,  for  he  was  not  infrequently  grosslv 

by  fees  or  bribes  and  the  royal  income  by  fines.    Cor- 

may.    The  King  promises,  cap.  XLV,  "Nos  non  facie- 
mus  Justiciarios,  Oonstabularlos,  Vice-Comites,  vel 

Sr^rt'^'brirS  r  '"'""  '«--  -^'  »'  - 
While  constables,  sheriffs  and  baUiff,  continued 
and  still  continue  to  be  appointed  who  are  laymen,  they 
are  liable  both  civilly  and  criminally  for  violation  ^f  the 
law-and  while  a  Lord  Chancellor  or  Lord  Keeper 
might  for  some  centuries  be  appointed  from  th->se  who 
were  not  lawyers...  Judges  began  shortly  aft.r  the 
Oiarter,  and  no  doubt  largely  in  eonsemence  of  it, 
to  be  appointed  almost  exclusively  from  the  Bar. 


IS 

By  the  Britith  North  America  Act  1867,  the 
written  Con.titution  of  the  Dominion  of  Canada,  aU 
Judgei  must  bo  appointed  from  the  Bar  of  the  Provinoa 
10  which  thev  are  to  act;  by  the  Statute,  of  Ontario, 
even  a  County  Court  Judge  mu.t  have  been  at  leaat 
"even  years  at  the  Bar  of  the  Province.  " 

In  EnKland  for  a  time  the  House  of  Lords  sat  ns 
a  whole  as  the  final  Court  of  Appeal,  but  for  many 
years  the  Lay  Lord,  have  not  taken  part  in  such 
matters. " 

It  took  six  hundred  year„  -nd  more  to  get  rid  of 
the  iay.judffe  in  England;  but  the  principle  was  de- 
clared  in  Magna  Carta-and  i.  it  not  the  same  in  es- 
sence  as  the  prinei.ilo  that  it  is  the  law  that  must 
govern   not  the  will  of  men  cnpriclously  exercised  f 

The  same  underlying  thought  was  responsible  for 
the  provision,  "Nullus  Vicecomes,  Constabularius, 
Coronatoros,  vel  nUi  Ballivi  i,ostri  teneant  plaoita 
coronae  nostrae."" 

In  the  Court.,  the  right  of  life,  lib-  ty  and  prop- 
erty  were  to  be  protected. 

"Nullus  Ballivns  ponat  dc  cxetero  aliquem  ad 
legem,  simplici  loquela  sua,  sine  testibns  fidciibus  ad 
hoc  inductis.""  The  full  explanation  of  this  provi- 
sion  would  require  the  discussion  of  law  now  happily 
obsolete;  it  is  sufficient  to  say  that  the  meaning  is  that 
no  one  against  whom  a  charge  is  made  is  hound,  simply 
beer  use  a  claim  is  made  against  him,  to  prove  the 
claim  to  be  unfounded-he  is  not  "put  to  his  law" 
until  credible  witnesses  arc  adduced  against  him;  in 
other  words  the  plaintiff  must  prove  his  case  before  the 
defendant  can  be  called  upon,  a  cardinal  principle  in 


16 

our  jurisprudence.  It  involves  also  the  principle  that 
anyone  charged  with  crime  shall  be  considered  innocent 
until  he  is  proved  guilty— that  his  guUt  must  be  proved 
by  witnesses  and  not  by  confession  wrung  from  him 
by  torture,  physical,  moral  or  mental— it  excludes  the 
French  system  which  suggests  that  an  accused  must  be 
held  guilty  till  he  proves  his  innocence— it  excludes 
equaUy  the  hideous  "Third  Degree"  which  disgraces 
some  English  speaking  communities  to  this  day. 

Then  comes  the  corresponding  protection  to  one 
charged  with  an  offence  against  the  State— "  Nullus 
liber  homo  capiatnr  vel  imprisonetur  aut  dissaisiatur 
aut  utlagetur  ant  exuletur  aut  aliquo  modo  destruatur; 
nee  super  enm  ibimus,  nee  super  eum  mittemns,  nisi 
per  legale  judicium  parium  suorum  vel  per  leeem 
terrae."" 

Whatever  may  be  the  origin  of  the  jury  system 
and  whatever  may  have  been  its  prevalence  at  the  time 
of  the  Charter  (and  perhaps  the  last  word  has  not  yet 
been  said  on  either  point).  Magna  Carta  made  it  by  this 
clause  a  cardinal  principle  in  English  jurisprudence. 
This  is  not  the  time  or  the  place  to  discuss  the  merits 
or  the  beauties  of  the  jury  system— while  we  in  Ontario 
have  got  rid  of  it  in  the  vast  majority  of  cases,  it  has 
free  course  and  is  glorified  in  most  if  not  all  of  the 
United  States.  =»  It  would  appear  that  the  Barons 
introduced  this  clause,  fearing  that  they  might  be  de- 
prived of  their  right  to  be  tried  by  their  peers,  the  other 
Barons;  and  that  they  might  be  tried  by  justices  ap- 
pointed by  the  king  who  would  be  professional  and  not 
occasional  judges.  They  bnilded  better  than  they  knew 
—the  King's  Courts  became  the  refuge  and  proteo- 


17 

tion  of  the  innocent  accused,  and  the  common  man  was 
tried  by  a  jury  of  common  men  and  his  peers,  while  the 
Baron  had  his  jury  from  his  own  class.  As  the  Eoyal 
Courts  and  not  the  local  courts  administered  justice,  the 
criminal  law  of  England  became  uniform,  an  enormous 
advantage. 

If  we  in  Ontario  have  forgotten  the  merits  of  the 
jury  we  have  not  failed  to  remember  and  act  upon  the 
spirit  of  the  next  section.  "NuUi  vendemus,  nulli 
negabimus,  nulli  differimus,  rectum  aut  justitiam."" 
I  do  not  know  that  anywhere  in  the  English-speaking 
world  ia  it  charged  or  if  charged  generally  believed, 
that  justice  in  the  Courts  is  sold,  seldom  is  it  thought 
that  justice  is  absolutely  denied;  but  is  there  no  coun- 
try, no  State  where  justice  and  right  are  delayed! 
And  is  not  the  delay  of  justice,  a  denial  of  justice  f 
Is  not  even  the  time  taken  up  waiting  for  a  hearing,  a 
denial  of  justice  t  Not  only  does  hope  deferred  make 
the  heart  sick  but  delay  often  produces  irreparable 
loss — not  only  is  the  law  blamed  and  the  judges  cursed, 
the  administration  of  justice  brought  into  disrepute — 
a  public  loss  and  calamity— but  there  often  is  private 
loss,  private  calamity.  That  being  so  in  civil  matters, 
not  less  important  is  reasonable  speed  in  criminal 
cases — punishment  loses  half  its  effect  if  not  promptly 
administered,  and  no  one  gains  by  delay  but  the 
criminal  and  his  lawyer.  In  the  Dominion  we  think 
that  if  a  murderer  is  not  hanged  within  a  year  of  his 
crime  he  has  the  right  to  complain  that  he  has  been 
deprived  of  his  rights  under  Magna  Carta. " 

In  connection  with  this  should  be  read  the  earlier 
section  "Nihil  detur  vel  capiatur  de  caetero  pro  Brevi 


18 

Inquisitionis  de  vita  vel  membris,  set  gratis  coDce- 
datur  et  non  negatur."  " 

In  the  change  in  criminal  proceeding  brought  about 
by  subsequent  legislation,  this  clause  became  useless 
and  ahnost  unintelligible;  but  it  was  long  a  living  and 
important  reaUty.  One  committed  to  gaol  on  a  charge 
of  crime  might  be  imprisoned  a  long  time  before  trial ; 
and  at  the  trial  it  might  appear  that  there  was  no  foun- 
dation for  the  charge.  In  view  of  this  possibility,  the 
law  provided  that  he  could  sue  out  a  Writ  of  Inquisi- 
tion—Breve de  Odio  et  AciS  or  de  Bono  et  Malo— upon 
which  the  Sheriff  must  inquire  whether  he  had  been 
committed  on  just  cause  of  suspicion  or  from  hatred 
and  ill-will  (odium  et  aciam)— if  the  latter  turned  out 
to  be  the  case,  the  prisoner  had  a  right  to  be  admitted 
to  bail. " 

This  provision  of  Magna  Carta  throws  a  lurid 
light  on  the  practices  of  the  Eoyal  Officers  whose  duty 
it  was  to  issue  these  writs;  and  of  course,  the  writ 
itself  was  the  early  predecessor  of  the  writ  of  Habeas 
Corpus  (which  did  not  come  into  general  use  until 
about  the  end  of  the  16th  century). 

The  unlawful  taking  by  the  King  or  his  officers 
of  the  property  of  the  subject  is  restrained  by  several 
sections— the  "BeUcf  "  to  be  paid  on  the  death  of  those 
holding  direct  from  the  King  is  kept  down  to  the 
"antiquum  relevium,"  the  ancient  relief  ^"— towns  or 
private  individuals  were  not  to  be  obliged  to  build 
bridges  or  river-embankments  except  such  as  they  had 
been  accustomed  to  build  as  of  right  =»— only  reason- 
able amerciaments  were  to  be  assessed  and  these  not 
to  deprive  a  merchant  of  his  goods  or  the  villein  or 


19 

laboring  man  of  his  cart— "for  trade  and  traffic"  says 
Coke  "are  the  Uvelihood  of  a  merchant  and  the  life 
of  the  commonwealth";  and  it  would  be  brutal  to  take 
away  the  laborer's  cart  and  make  the  miserable  crea- 
ture carry  his  fertilizers  on  his  back. "' 

"Omnos  Comitatus  et  Hnndredi,  Trethingii  et 
Wapentachii  sint  ad  antiquas  firmas,  absque  nllo  incre- 
mento,  exceptis  Dominicis  maneriis  nostris."" 

The  City  of  London  and  all  other  Cities,  Towns, 
Burghs  and  Ports  were  to  have  all  their  ancient  liber- 
ties and  free  customs  in  all  respects.  -'  Custom  is  the 
life  of  the  law. 

While  purveyance  continued  to  show  its  evil  head 
for  some  centuries  later,  (for  it  was  not  formally 
abolished  till  after  the  Commonwealth),  much  of  its 
evil  was  destroyed  by  the  Charter— "  Nullus  Con- 
stabularius  vel  alius  Ballivus  noster  capiat  blada  vel 
alia  catalla  alicujus,  nisi  statim  inde  reddat  denarios 
aut  respcctnm  inde  habere  possit  de  voluntate  vendi- 
toris."  »  The  King  had  to  have  provisions,  fuel,  etc.; 
but  his  officers  were  thenceforward  to  pay  on  the  spot 
for  it  (unless  the  owner  voluntarily  gave  credit)  and 
the  immediate  payment  of  "denarii"  has  a  wonder- 
fully quieting  effect  both  on  the  subject  who  must  give 
up  his  goods  a-  the  officer  who  might  be  tempted  to 
exceed  his  mas.  .  's  necessities. 

All  this  is  rudimentary  Eminent  Domain;  but  we 
do  not  at  the  present  time  recognize  that  there  is  that 
necessity  to  supply  the  personal  wants  of  the  king 
which  characterized  the  ancients— indeed  the  whole 
frame  of  society  has  changed,  open  markets  and  the 
laws  of  supply  and  demand  have  made  it  possible  for 


20 

the  king  to  procure  his  supplies  without  forcing  an  un- 
willing subject. 

Where  there  is  a  real  necessity  as  for  land  in  a  cer- 
tain place,  the  head  of  the  State  may  still  expropriate, 
but  as  in  Magna  Carta,  he  pays  denarios  down. 

The  corresponding  practice  of  taking  the  use  of 
the  common  man's  horses  and  carts  for  carriage  of  the 
king's  goods  was  stopped  by  the  Charter— "  Nullus 
Viceeomes  vel  Ballivns  noster  vel  aliquis  alius  capiat 
equos  vel  earrettas  alicujus  liberi  hominis  pro  carragio 
faoiendo,  nisi  de  volnntate  ipsius  liberi  hominis."  " 
We  cannot  allow  the  King  to  starve  but  he  must  send 
for  his  necessaries  and  not  compel  us  to  take  them 
to  him. 

By  far  the  most  important  provision  of  the 
Charter,  although  it  is  certain  that  none  of  the  parties. 
King,  Bishops,  Barons,  thought  so,  is  that  which  is  the 
foundation  of  all  freedom  in  a  monarchy,  that  which 
gives  control  of  the  purse — "Nullum  Scutagium  vel 
auxilium  ponatur  in  regno  nostro  nisi  per  commune 
consilium  regni  nostri    *        *        •    _"  si 

The  Commune  Consilium,  the  Common  Council, 
at  this  time  was  the  body  of  tenants  in  capite,  tenants 
holding  directly  from  the  king,  and  qualified  shnply  by 
virtue  of  that  tenure.  The  king  looked  for  his  "aids" 
to  his  tenants  in  chief,  and  this  clause  provided  that 
they,  not  he,  should  raise  the  aid,  should  grant  him 
money.  But  the  principle  was  fixed — no  money  was  the 
king  to  have  from  his  people  except  such  as  they  were 
minded  to  give  him.  The  time  had  not  come  when  the 
Common  Council  was  to  develop  into  a  Parliament, 
but  it  was  to  come,  and  when  it  came,  the  principle 


21 

of  Magna  Carta  was  not  forgotten;  Parliament  held 
the  purse  strings  and  the  king  must  look  tc  the 
Conunons  for  money  to  carry  on  his  wars.  Thus  it 
was  and  is  that  Parliament  in  fact  declares  war,  for 
it  must  supply  the  means  to  carry  it  on— and  thus  the 
Congress  of  the  United  States  is  wholly  seized  of  all 
questions  of  peace  and  war.""  In  some  nations,  the  king 
may  alone  declare  war,  at  least  if  the  war  be  defensive ; 
he  judges  whether  it  is  defensive,  and  if  he  wants  war, 
it  is  sure  to  be  defensive. 

While  the  Barons  thus  clipped  the  wings  of  the 
Hoyal  power,  the  mesne  Lords,  the  inferior  Lords 
of  the  fee  were  also  checked  in  their  illegal  demands 
upon  the  terre-tenant.  "Nos  non  concedemus  de  caetero 
alicui  quod  capiat  anxilium  de  liberis  hominibus 
suis,  nisi  ad  corpus  suum  redimendum  et  ad  faciendum 
primogenitum  filinm  suum  militem  et  ad  primogenitam 
flliam  suam  semel  maritandam ;  et  ad  haec  non  fiat  nisi 
rationabile  auxilium.'""  This  was  in  reality  to  fix 
the  amount  of  rent  for  which  the  immediate  occupant 
of  the  soil  was  to  be  liable. 

While  merchants  were  to  be  free  to  come  into 
and  go  out  of  England  and  to  buy  and  sell,  and  foreign 
merchants  were  in  time  of  war  to  be  treated  as  well  as 
English  merchants  were  by  the  hostile  belligerent" 
(for  commerce  was  the  life  of  the  nation),  care  was  to 
be  taken  for  one  set  of  weights  and  measures,  common 
to  the  Kingdom — "Una  mensura  vini  sit  per  totum 
regnum  nostrum  et  una  mensura  cervisiae  et  una  men- 
sura bladi,  scilicet  quartarium  Londonii:et  una  latitude 
pannorum  tinctorum  et  russettorum  et  halbergettorum, 


1 


T)e  .    ideribus  autcm 


22 

Bcilicet,  duae  ulnae  infra  listas. 
Bit  nt  do  mensuris."" 

Subjects  also  were  to  be  allowed  to  go  out  from 
England  and  to  return  safely  and  securely  by  land  or 
water  '-salva  fide  nostra,"  saving  their  allegiance,  un- 
less it  be  in  time  of  war."  This  "salva  fide  nostra" 
is  very  important— at  the  Common  Law  of  England,  no 
subject  could  without  the  will  of  the  Sovereign  divest 
himself  of  his  allegiance— "  Nemo  exuere  patriam  pos- 
sit";  and  this  proviso  was  intended  to  preserve  the 
right  of  his  Sovereign  and  country  to  the  faithful 
allegiance  of  the  natural  born  subject. 

It  will  be  remembered  tliat  there  has  been  a  claim 
made  that  the  war  of  1812-14  was  due  at  least  in  part 
to  the  practice  of  Britain  seizing  and  "pressing"  her 
natural  born  subjects  who  had  become  American  citi- 
zens; this  practice  was  based  upon  the  Common  Law 
of  England  (and  of  the  United  States)  as  laid  down  by 
all  text-writers,  English  and  American,  and  affirmed  by 
the  Supreme  Court  of  the  United  States  from  the  first 
and  as  late  as  1830.  The  Treaty  of  Ghent  was  silent 
on  the  subject.  Britain  refused  to  give  np  her  right  j 
the  negotiations  between  Webster  and  Ashburton  in 
1842  effected  nothing  as  to  this  and  Britain  retained 
her  right  until  1870.  Tlie  principle  is  not  very  unlike 
that  principle  vigorously  disputed  but  still  more  vigor- 
ously and  successfully  maintained  half  a  century  ago 
that  an  American  State  .annot  leave  the  Union— 
"Nulla  natio  exuere  patriam  possit."  It  never  was 
contended  by  any  English-speaking  people  that  a  sub- 
ject mignt  on  becoming  a  citizen  of  the  United  States 
obtain  permission  to  retain  his  former  allegiance  at 


i 


23 

the  samo  time  and  so  in  case  of  dispute  be  a  traitor  to 
one  country  of  his  alleRiance  or  the  other;  that  dis- 
covery was  made  by  another  nation  whoso  conception 
of  international  law  and  international  decency  all 
know,  because  it  is  the  marvel  of  the  ages— I  do  not 
add,  the  admiration  of  the  world. 

Certain  private  rights  of  property  are  protected ; 
the  widow  has  her  qunrantiRe  and  her  dower  free  from 
her  deceased  husband's  debts  and  is  not  to  be  forced 
to  marry  that  she  may  find  a  protector— thereby  a 
status  is  secured  to  her  a  little  higher  than  that  of  a 
cow."  Orphan  children  arc  not  to  be  defrauded  of 
their  heritage  by  guardians  who  take  charge  of  their 
estate  during  their  infancy,  whether  the  guardian  be 
a  kinsman  or  a  person  appointed  by  the  king  who  is 
parens  patriae;  and  if  the  father  die  indebted  to  the 
Jews  or  others,  the  children  must  first  be  provided 
with  necessaries  and  the  debt  paid  out  of  the  residue 
and  in  any  case  no  interest  is  to  be  paid  on  the  debt 
as  long  as  the  heir  is  under  age.  •"'  This  is  not  wholly 
unlike  the  homestead  law  of  some  States  and  Provin- 
ces ;  and  indicates  a  consideration  for  the  manhood  of 
the  kingdom  before  commercial  considerations. 

A  vivid  light  is  cast  upon  the  state  of  society  of 
the  time  by  the  following  section— "Si  aliquis  liber 
homo  intestatus  decesserit,  catalla  sua  per  manus  pro- 
pinquorum  parentum  et  amicorum  suorum,  per  visum 
Ecclesiae  distribuantur ;  salvis  unicuique  debitis  quae 
defunctis  ei  debebat."" 

The  man  who  died  without  a  will  having  no  longer 
any  use  for  his  chattels  and  not  having  expressed  his 
wishes  as  to  their  destination,  was  considered  to  have 


24 

abandoned  them,  and  anciently  the  king  became  en- 
titled to  them  as  "parens  patriae"— after  a  time  the 
kings  gave  these  abandoned  goods  to  the  Church  to 
do  therewith  what  was  best  for  the  soul  of  the  dead 
man;  the  Bishop  was  accountable  to  no  one  for  his 
disposition  of  these  chattels,  too  often  not  even 
the  poor  had  any  advantage  from  them,  and  rarely  did 
the  widow  and  orphan  have  any  share.  Creditors  had 
no  possible  chance  of  being  paid;  the  Church  took  all. 

This  section  enables  creditors  to  be  paid  and  the 
remainder  of  the  goods  divided  by  the  hand  of  near 
relatives  and  friends— our  "Administrators." 

Unfortunately  this  provision  was  more  honored  in 
the  breach  than  in  the  observance ;  flagrant  abuses  con- 
tinued, the  church  was  aggrandized,  the  creditors, 
widow  and  orphan  were  defrauded  for  many  years 
longer  until  the  Statute  of  Westminster  II  in  1285 
commanded  that  creditors  should  be  paid,  and  a  subse- 
quent Statute  in  1357  directed  that  the  estate  should  be 
administered  by  the  nearest  and  most  lawful  friends  of 
the  deceased.<°  This  injustice  therefore  existed  for 
nearly  a  century  and  a  half  after  its  abolition  had  been 
solemnly  provided  for;  during  all  which  time,  they  who 
"sent  widows  away  empty"  were  high  in  the  Church 
and  often  in  the  State— whether  or  not  they  for  a 
pretence  made  long  prayers,  they  braved  the  woe  pro- 
nonnced  by  the  Master  upon  those  "who  devour 
widows'  houses." 

Other  and  more  public  wrongs  were  directed  to 
be  righted.  Some  living  on  the  Thames  and  other 
rivers,  built  weirs  across  the  stream  with  a  narrow 
sluice  at  their  own  side  of  the  stream;  the  fish  with 


25 

which  the  English  rivers  at  that  time  teemed  were 
forced  in  their  passage  up  or  down  to  take  to  the 
sluice;  there  they  were  caught  in  shoals  to  the  detri- 
ment of  the  other  Englishmen  living  on  the  river  and 
having  an  equal  right  to  catch  fish.  These  weirs, 
"Kydells"  they  were  called,  were  ordered  to  be  re- 
moved throughout  all  England-similar  structures 
were  allowed  however  at  the  coast  where  no  man's 
right  was  interfered  with. " 

In  Canada  and,  I  presume,  in  the  United  States, 
those  who  build  dams  on  streams  are  bound  to  provide 
some  means  whereby  fish  may  make  their  way  up  and 
down— this  is  simply  preserving  the  riparian  rights  of 
everyone  who  has  land  on  the  stream. 

Much  land  had  been  withdrawn  from  cultivation 
and  turned  into  forest— the  terrible  New  Forest  of  the 
Conqueror  is  the  best  known  example,  but  other  forests 
were  made.  The  deer  and  other  wild  animals  were  the 
property  of  the  king  and  must  not  be  killed  on  pain 
of  mutilation,  even  though  they  should  be  found  de- 
stroying the  crops  of  the  unfortunate  farmer— a  forest 
was  a  curse  to  everybody  but  Royalty  and  a  few  favor- 
ites. King  John  undertook  to  disforest  all  forests 
which  had  been  made  in  his  time  and  to  abolish  all 
evil  customs  of  Forest  and  Warrens  and  the  oflicers  in 
charge  of  them.  Moreover  all  fences  whereby  his 
subjects  were  kept  from  the  rivers,  the  king  was  to 
remove  at  once." 

The  Barons  well  knew  that  as  soon  as  the  king 
might  think  it  safe  to  break  his  contract,  he  would  be 
hable  to  do  so— they  saw  to  it  that  those  who  had  been 
most  active  in  wrong-doing  in  the  king's  service  were 


26 

to  be  unt  out  of  the  kinRdom;  but  a  more  important 
proviaion  was  made  cuncprning  bia  mercenary  army: 
"Et  statim  post  paeia  rrformationem,  amovebimus  do 
regno  omncs  alioniKenas  milites,  balistarios,  servientes 
ntipendarios,  qui  venerii't  cum  equis  et  armis  ad  nocu- 
mcntum  rcgni. "  " 

And  ever  since  (as  indeed  before,)  a  large  stand- 
ing army  has  been  looked  at  askance,  as  a  likely  instru- 
ment of  oppression  and  tyranny  in  the  hands  of  an  un- 
scrupulous monarch;  all  danger  has  been  avoided  by 
placing  the  military  power  below  the  civil  power,  a  plan 
that  would  horrify  the  heroes  of  Zabern. 

Knowing  that  they  and  their  people  must  suffer 
in  all  cases  of  conflict  with  the  neighboring  peoples, 
the  Barons  stipulated  for  conciliatory  measures 
toward  LIewell\-n  of  Wales  and  Alexander  of  Scotland, 
for  the  delivery  up  to  the  Welshmen  of  any  lands 
wrongfully  taken  from  them  by  the  king,  by  his  brother 
Richard  or  his  father  Henry  II  "—the  first  time  per- 
haps in  English  history  that  foreign  affairs  were  thus 
interfered  with,  but  by  no  means  the  last. 

Where  war  is  not  entered  on  without  an  impulse 
from  the  people  or  without  "their  previous  knowledge 
or  approval,"  there  will  be  few  unnecessary  wars. 

"We  are  at  the  beginning  of  an  age  in  which  it 
will  be  insisted  that  the  same  standards  of  conduct 
and  of  responsibility  for  wrong  done  shall  be  observed 
among  nations  and  their  governments  that  are  ob- 
served among  the  citizens  of  civilized  states";  nothing 
in  my  opinion  will  do  more  to  prevent  wilful  wrong  in- 
ternationally than  giving  those  who  must  suffer,  the 
right    of    declaring    through    their    representatives 


27 

whether  they  will  go  to  war.  "Where  public  opinion 
command.,  and  in.ii.ts  upon  full  information  concern- 
ing the  nation's  affair.,"  right  is  in  most  cases  likely 
to  be  done. 

The  hundred  years  of  peace  between  the  United 
States  and  Britain  have  been  made  possible  only  by 
both  peoples  standing  by  their  pledged  word  and  by 
their  disputes  being  fought  out  in  the  open.  Both  have 
said 

A  scrap  of  paper  where  a  name  is  set 
Is  strong  as  duty's  pledge  and  honor's  debt; 
and  both  have  avoided  intrigue  and  cunningly  con- 
trived plans  of  deception  and  aggression— they  felt  and 
knew  that  any  advantage  obtained  by  fraud  or  cunning 
would  be  a  real  detriment  not  only  to  the  world  at  largo 
but  to  themselves.  As  in  the  past  so  in  the  future, 
God  grant  that  these  nations  filled  with  the  sijirit  of 
Magna  Carta  and  with  the  consciousness  of  true  broth- 
erhood, may  be  toward  each  other  and  toward  the 
world,  open  in  their  aims,  honest  in  their  statements, 
true  to  their  pledged  faith,  for  so  the  world  will  be 
bettered  in  their  betterment. 

Above  all,  be  it  ever  remembered  in  the  darkest 
days  to  come, 

"Only  free  peoples  can  hold  their  purpose  and 
their  honor  steady  to  a  common  end  and  prefer  the 
interests  of  mankind  to  any  narrow  interest  of  their 
own." 


NOTES 

Judgntnt,  bM,»g  much  of  hi.  „i,j«,„m  „p„,  i,.,n.  C.rti     I-  u 

ir^v!T  r*;  ""'  °"°'  °'  "•  P'-'"™  !••'•  •»«""  oh«.f." 

!.  ."."d^'J."  ■■'""■^™  »'  ""  "•""•  0'  ''^  — i»<™  .pp." 

(..o;r?or"B.°,3vrp.  m""""' '°  "■'"  '•  ^"^  °'  '-"'°- 

«1..«  of  J„.,i«  of  .h.  Ho.«  of  Co»„„„  „p,„,d  ■'m,  J",  oir. 

J™!.  ™      /""  "'*°'  '^•'^  "■•  »""  P'"«™  of  our  li,« 
freedom  tod  property."    e  8t.  Tr.,  roj.  "^  ""  '"•"' 

4  An  obj«.tioii.bl.  prartic.  i.  oot  uotommon  in  th.  UdIM  8t>l. 

^^!fS!:— •---.•-SIS 

lug  of  Judge.  M  "  the  Betorend. "  •.—"■"  oi  .peu- 

»Popo'«  En>7  00  Mu,  Epiitl.  iil,  u.  303.4. 


30 

61  who  am  Deitber  Angle  nor  Snxon.  yet  call  myself  "  Anglo- 
Salon' '  in  the  lense  n«ed  here,  i.  e.,  "English  or  having  the  Barae 
language  and  the  same  conception  of  government,  etc.,  as  the  English. ' ' 

7  It  does  DO  great  barm  to  speak  of  King  George  V  as  King  by  the 
Grace  of  God,  so  long  as  «e  carefully  beat  in  mind  as  w«,  the  British 
folk,  do  that  we  mean  and  he  knows  we  mean  and  the  fact  is  that  be  is 
King  by  Grace  of  an  Act  of  Parliament. 

8  Of  course,  I  refer  to  the  epoch-making  Address  of  the  President 
of  the  United  States  to  Congress  on  Tuesday,  April  3,  1917—0  faustum 
et  felicem  bunc  diem  I  Had  Charles  I  not  shown  that  it  was  impossible 
to  rely  upon  his  pledged  faith  ho  would  never  have  been  executed.  Vet 
there  can  be  no  doubt  that,  entertaining  the  views  he  did  of  the  origin 
and  character  of  royal  power,  he  would  have  regarded  himself  as 
recreant  to  the  trust  given  him  by  Cod,  bad  he  kept  the  promises  made 
to  bis  subjects  which  he  bad  been  forced  to  give. 

The  President's  statement  just  quoted  is  in  my  opinion  the  most 
pregnant  delivc-ance  in  this  generation— no  one  but  a  historian  would 
have  thought  of  it,  no  one  but  a  statesman  made  it  the  basis  of  action. 
I  am  quite  sure  its  tremendous  significance  will  display  itself  in  the 
future  of  the  world. 

9 "The  popularity  of  this  Court  [the  Curia  Regis]  is  attested  by 
the  nnmber  of  fines  which  litigants  paid  for  writs,  for  pleas,  for  trials, 
for  judgment,  for  expedition  or  for  delay."  Iloldsworth,  History  of 
English  Law,  Vol.  1,  p.  27.  All  these  were  "honest  graft"  In  the 
opinion  of  the  king  and  bis  officers.  Even  in  the  time  of  the  Plantagenet 
Edwards  and  later,  "The  King's  rights  to  escheats  and  forfeitures  and 
the  chattels  of  felons  seem  sometimes  to  interest  the  judges  almost  as 
mueh  as  the  due  maintenance  of  law  and  order."  Holdswortb,  History 
of  English  Law,  Vol.  Ill,  p.  242.  The  learned  author  puts  the  case 
very  mildly  indeed:  I  should  have  reversed  the  comparison  and  said, 
"Sometimes  the  due  maintenance  of  law  and  order  seem  to  interest  the 
jndges  almost  as  much  as  the  King's  rights  to  escheats  and  forfeitures 
and  the  chattels  of  .elons. " 

10  The  right  of  Purveyance,  as  it  was  called,  "  was  a  right  enjoyed 
by  the  Crown  of  buying  up  provisions  and  other  necessaries  by  the  inter- 
vention of  the  king's  purveyors  for  the  use  of  his  royal  household  at 
an  appraised  valuation  in  preference  to  all  oihers  and  even  without  the 
consent  of  the  owner."  Blackstone  Comm.,  Book  I,  p.  287.  This  right 
will  be  spoken  of  more  at  length  later  on.  Ijueen  Elirabeth  was  a 
notorious  sinner  in  the  practice  of  imposing  herself  as  a  guest  on  her 
subjects,  but  the  custom  is  noted  of  many  monarchs  to  act  in  this  way. 


31 


I  hftre  in  the  American  Journal  of  Crimuikl  Law  for  1917  given  an 
account  of  a  trial  for  witchcraft  arieing  alrooet  direetlj  from  a  riiit  of 
Edward  II  and  his  Court  t '  the  Prior  of  Coventry. 


??•  bia  notes,  pp.  197,  198,  "Com- 
rt,  (>.<i  shall  be  held  io  some  certain 


11  Thomeon,  p.  ';  (Avtl,  °>. 
mon  Pleaa  shall  not  -^Ilofv  our  O. 
place, ' ' 

121  am  not  ann.^.lt'ii'  of  tha  Jv  ticea  in  Eyre;  no  one  can  read 
of  the  proceedings  beiore  jubuv^j  ia  Gjrre  without  seeing  that  much  of 
their  duty  consisted  io  procuriug  money  for  the  Kingi  very  many  of 
those  who  came  before  them  were  in  mwericordid,  in  mercy,  and  liable 
to  pay  a  fine.  It  might  be  noted  that  while  the  Court  of  Common  Bench 
generally  sat  at  Westminster,  it  occasionally  sat  elsewhere,  e.  g.,  at  York 
in  the  reigns  of  Edward  III  and  Richard  II;  at  Hertford  in  that  of 
Elirabetb.  Edward  III  claimed  the  right  to  have  it  sit  where  be  pleased, 
and  apparently  had  the  claim  allowed.  Holdsworth,  History  of  English 
Law,  Vol.  1,  pp.  74,  75. 

Of  course,  the  Exchequer  always  sat  at  Westminster  where  its 
offices,  records  and  pipe-rolls  were  kept. 

13  Thomson,  p.  84  (XLV,  42).  "We  will  not  make  Justiciaries, 
Constables,  Sheriffs  or  Bailiffs  except  of  such  as  know  the  law  of  the 
realm  and  are  well  disposed  to  obey  it."  Thomson,  p.  240,  says,  "In 
the  Statutes  of  King  Ethelred  it  is  ordained  that  'a  Judge  wbo  shall  give 
any  unjust  judgment,  shall  pay  to  the  King  CXX  shillings  unless  he  be 
heard  to  swear  that  he  did  not  know  how  to  judge  rightly'  [I  may 
remark  parenthetieally  that  I  fancy  the  chances  would  be  100  to  1  that 
he  would  not  be  "heard"  so  to  swear  and  thus  deprive  the  King  of  120 
shillings — at  least  $1000  of  present  value].  The  Lawa  of  Canute  add 
that  be  shnll  be  dismissed  from  his  legal  dignity  if  he  do  not  redeem  it 
from  the  King,  according  as  it  shall  be  allowed  him. ' '  While  a  Judge 
acting  within  the  powers  of  bis  office  is  protected  from  action,  he  may  be 
removed  on  the  addrees  of  both  Houses  of  Parliament  in  England  and 
Canada — or  impeached  in  the  United  States.  More  than  one  Lord ' 
Chancellor  has  suffered  condign  and  more,  speedy  punishment.  ' '  In  the 
time  of  King  Richard  II,  Earl  Typtoft,  a  Chancellor,"  says  Thomson, 
p.  240,  "was  even  beheaded  for  acting  on  the  King's  warrant  against 
the  law : ' '  but  Lord  Campbell  knows  him  not.  Ez-Chancetlor  Arundel 
in  that  reign  was  impeached  and  convicted  but  escaped  death  as  he 
was  an  ecclesiastic;  and  unfortunate  Simon  de  Sudbury  was  beheaded 
on  Tower  Hill  by  Wat  Tyler  and  Jack  Straw;  but  that  wan  on  general 
principles,  the  same  general  principles  enunciated  later  by  "Jack  Cade 
the  Clothier"  and  "Dick  the  Butcher,"  namely,  "the  first  thing  we 
do,  let's  kill  all  the  lawyers."  King  Henry  VI,  Act  4,  Sc.  2.  It  ii 
almost  if  not  quite  certain  that  the  person  referred  to  as  Earl  Typtoft, 


32 


was  John  Tiptoft,  Earl  of  Worcetter,  who  wu  &  CommiHioner  of  Oyer 
and  Terminer,  t.  «.,  a  Judge  at  the  Criminal  Amizet:  be  wai  Lord  High 
Treasurer  and  Chief  Juftice  of  North  Wales :  aa  Constable  he  tried  and 
eentenced  to  be  hanged  several  Lancastrians  and  when  the  wheel  turned 
and  Edward  IV  fled,  the  vengeful  votaries  of  the  Red  Rose  eaased 
his  bead  to  be  struck  off.  He  was  appoiDted  Chancellor  of  Ireland  in 
]4'>2  (or,  as  the  D.  N.  B.  says,  14M)  b;  bis  grateful  sovereign;  it 
does  not  appear  whether  he  ever  sat  aa  such.  His  execution  was  not  for 
corruption,  but  vras  purely  political.  See  D.  N.  B.,  Vol.  56,  pp.  4U-414; 
Haydn's  Book  of  Dignities,  p.  575. 

The  impeachments  of  Francis  Bacon,  Lord  Vernlam  and  of  Lord 
Macclesfield  are  well  known;  and  Lord  Westbury  had  a  rather  narrow 
escape. 

Thomson  goes  on  to  say,  If  a  Judge  "who  has  no  jurisdiction  of  a 
rsiir'4-  give  judgment  of  death  and  award  execution,  the  Judge  and  the 
officer  who  executes  the  sentence  are  both  guilty  of  felony."  There 
was  a  very  curious  case  on  this  Continent. 

When  Canada  passed  under  the  British  rule,  Detroit  was  surrendered 
and  Lieutenant  Governors  were  sent  out  to  command  "Detroit  and  its 
Dependencies. ' '  These  Lieutenant  Governors  or  Commandants  took  it 
upon  themselves  to  appoint  Justices  of  the  Peace,  and  in  1767  one  Philip 
Dejean  was  so  appointed:  he  also  received  a  Commission  from  the 
Commandant,  Major  Bayard,  aa  "Second  Judge"  to  hold  a  "Tempery 
Court  of  Justice  to  be  held  twice  in  every  month  at  Detroit,  to  Decide 
on  all  actions  of  Debt,  Bond,  Bills,  Contracts,  nnd  Trespasses  above  the 
value  of  £5  New  York  Currency."  (In  New  Vork  Currency,  a  shilling 
was  12^  cents — a  York  shilling  or  "Yorker"  still  in  vogue  on  the  north 
shore  of  Lake  Ontario  io  my  boyhood,  fifty  years  ago.  £l=20B=t2.50, 
«=*12.50.) 

When  Henry  Hamilton  was  sent  as  Lieutenant  Governor  in  1775, 
he  allowed  Dejean  to  continue  in  bis  Court  as  Justice  of  the  Peace,  and 
Dejean  went  far  beyond  the  limits  of  the  authority  of  a  Justice  of  the 
Peace.  We  are  told  that  a  man  and  woman  were  tried  in  1776  by 
Dejean  with  a  jury,  six  English  and  six  French,  on  a  charge  of  arson 
and  larceny,  and  convicted  of  the  larceny,  but  the  jury  ' '  doubted  of 
the  arson."  The  man  was  executed,  it  is  said  by  the  bands  of  th« 
woman  who  thus  bought  her  freedom.  The  attention  of  the  authoritiei 
at  Quebec  was  drawn  to  the  state  of  matters  in  Detroit  by  these  extra- 
ordinary proceedings,  and  warrants  were  issued  for  Governor  and  Jus- 
tice. The  Grand  Jury  at  the  Court  of  King's  Bench  at  Montreal  on 
Monday,  September  7,  1778,  presented  Dejean  for  "divers  unjust  it 
illegal  Terranical  A  felonious  Acts"  during  1775,  1776  and  1777  at 
Detroit,  and   Henry  Hamilton  the  Governor  for  that  be  "toleratedi 


33 

offered  and  p,mit«d  tbe  same  under  bi,  Go.eraMnt,  guidance  and 

diwtion  "— bMce  the  warraol. 

The  .tirring  tinie>  following  the  American  invaeion  of  Quebec  were 

on,  and  the  offenderi  eecaped  immediate  puniihment. 

By  letter  of  April  16,  1779,  Lord  George  Germain,  Secretary  of 
State  for  the  Colonie.  (afterwards  ViKount  Backville)  .aid  "The 
preeentment.  of  the  Grand  Jury  at  Montreal  against  Lieut.Gov.  Hamil- 

on  and  Mr.  Dejean  are  e.preeeiTe  of  a  greater  degree  of  jealouay  than 
the  transaction  complained  of  in  the  then  circumstances  of  the  Province 
appeared  to  -arr«,t.     Such  stretches  of  authority  are,  however,  only 

o  be  eicused  by  unavoidable  necesaity  and  the  justness  and  Htnes.  of 
the  occasion."  He  therefore  ordered  that  the  Chief  Justice  should 
namme  the  evidence  of  "the  Criminal's  Ouilt,  and  if  he  be  of  opinion 
that  he  merited  the  Punishment  .  .  .  .  tho'  irregularly  iniicted 
...     a    nolle  prosequi'  "  should  be  entered.     This  was  done. 

,o,,^!.r7  t^'^"'  ^'"'  ""  Michigan  State  Bar  AawKiation,  June, 
1915,  "The  First  Judge  of  Detroit  and  his  Court." 

14  Anthony  Ashley   Cooper,   Lord   Shaftesbury,   wa,  the   last   non- 

i'sTk  'rv'T"  ,*?'  ''°°""'''  "  ™  'W"'"""!  I'"""  Chancellor  in 
18.2  by  Charles  II,  and  at  once  proceeded  to  make  a  fool  of  himself 
as  all  interested  may  read  in  Campbell's  Lives  of  the  Lord  Chancellors, 
n  J;''v'  I      ''''■     ""  Christopher  Hatton  had  been  appointed  by 

Queen  Elisabeth  apparently  for  hi.  skill  in  dancing  (1587) ;  but  Shafts, 
bury  ,  appointment  w.s  for  political  reawns  of  the  mo.t  corrupt  kind- 
no  political  machine,  Tammany  or  other,  could  give  points  to  the  ancient 
Engish  statesman.  But  no  king  or  cabinet  ever  again  ventured  to  ap- 
point  a  lay  chancellor  after  Shaftesbury:  and  no  one  baa  ever  triumphed 
for  long  who  showed  contempt  tor  the  gentlemen  of  the  Bar  Lawyer, 
are  quick  to  resent  and  have  long  memories. 

p  ,^^'„t  ^-  *■  *"  <"'"'  '"■''  ^'"•'  '■  3.  •■"■  97,  98  (Imp.), 
R.  S.  O.  (1914)  c.  58,  s.  3.  The  County  Court,  are  local  Court,  of 
Kecord  of  mferior  and  limited  civil  jurisdiction:  but  the  County  Court 
Judge,  have  very  ejtended  criminal  jurisdiction. 

l«On  this  Continent,  for  many  years  the  Second  Chamber  of  the 

Final  Court  of  Appeal:  this  came  to  an  end  mwty  year,  ago  without 
regret  on  any  side.  (The  Constitution  of  the  State  of  Now  York  1777 
by  Article  XXXII  provided  "That  a  court  shaU  be  instituted  for  the 
Inal  of  impeachments  and  the  correction  of  errors,  under  the  regnla- 
,ons  which  shall  be  established  by  the  Legislature,  and  to  consist  of 
the  Pr«ndent  of  the  Senate  for  the  time  being,  and  the  Senators,  and 


84 

JudgM  of  t'j*  Supreme  Court,  or  the  major  part  of  them";  there  wu 
00  proTiB-jD  that  the  Senators  should  necessarilj  be  Uwjen,  and  the 
Datura!  result  waa  that  the  lay  Senators  sometimes  thought  the  judg- 
ment unjust,  and  voted  to  reverse  it,  notwithstandiog  the  fact  that  it 
was  sound,  as  a  matter  of  law. 

In  other  words,  there  waa  a  sort  of  referendum  to  selected  lay 
Judges,  as  our  Court  of  Appeals,  and,  as  one  may  well  judge  from  this 
Court  coming  to  be  called  the  "Court  of  ErTort,"  the  plan  did  nut  work 
very  well. 

NeTerthelesfl,  when  the  second  Constitution  was  adopted  in  1821,  the 
same  provision  was  continued  in  Article  V.  It  thus  came  about  that 
from  1777  until  the  Constitution  of  1846,  which  took  effect  in  1847,  or 
for  substantially  70  years,  the  State  muddled  along  with  its  Court  of 
Errors.  The  result  became  more  and  more  unsatisfactory  to  the  Bar 
of  the  rapidly  growing  State.  During  all  this  time,  it  is  said  that  Court 
had  the  courage  of  decision  to  condemn  laws  aa  unconstitutional  ooly 
three  times.  The  Judges  had  alt  been  appointed  down  to  1846,  and  they 
had  been  men  of  learning  and  high  character,  who  were  too  often 
humiliated  by  having  their  judgments  reversed  by  the  Court  of  Errors. 

In  1846,  a  wave  of  what  was  considered  democracy  swept  over  the 
State,  and  in  the  new  Constitution  appointed  Judges  were  done  away 
with,  and  in  the  place  of  the  Court  of  Errors  the  Court  of  Appeals  was 
provided;  which  Ckiurt  consisted  of  four  elected  Judges  of  the  Court  of 
Appeals,  and  the  four  Justices  of  the  Supreme  Oourt  having  the  shortest 
remaining  period  of  time  to  serve  before  their  terms  expired.  In  other 
words,  the  Court  of  Appeals  consisted  of  four  Judges  elected  for  terms 
of  eight  years,  and  the  four  Supreme  Court  Justices  elected  for  the  same 
period  of  time,  whose  terms  would  first  expire.  In  this  way,  the  senior 
Supreme  Court  Justices  in  matter  of  service  '  :)natituted  one-half  the 
Court  of  Appeals.  This  Court  of  Appeals  proved  more  satisfactory  than 
the  Court  of  Errors,  but  it  was  too  fluctuating  to  be  stable.  Further- 
more, there  was  no  provision  that  a  Justice  of  the  Supreme  Court  should 
Dot  sit  in  review  of  his  own  judgment,  an  oversight  which  resulted  in 
Justices  of  the  Supreme  Court  thinking  it  their  duty  to  sit  in  cases 
they  had  heard  in  the  Court  below,  at  times,  with  the  naturally  result- 
ing criticism  of  a  Court  that  too  often  affirmed  its  own  decisions.  The 
result  was  that  when  the  Const-tut ional  Convention  of  1867  sat,  a  pro- 
vision was  made  which  was  approved  by  the  people  (all  the  rest  of  the 
proposed  Constitution  waa  voted  down).  It  proposed  a  revision  of  tha 
Court  of  Appeals  part  of  the  Constitution,  under  which  the  people 
elected  a  new  Court  of  Appeals  for  terms  of  14  years,  and  that  able 
Court  soon  began  to  give  satisfaction  to  the  people  and  the  Bar,  Except 
as  to  limitations  of  appeals,  that  Court  was  continued  in  practically 


35 

U.  pr««lt  fom  by  th.  Con«i,„,i„.  „,  ,8«4,  ,bich  I,  .till  i.  .««. 
rterf  I.  u  lddit.OD.1  Mn.titutiOD.1  pioTiaioo,  onder  .hicb  tfa.  Got- 
emor  ,«,  .pp„i„,  j„„i,„  „,  .j,  g„p„„.  ^^^  ,^  ^^^  .__  ^^^^  ^^^  ^^ 

Ap>,al.  ,heD  tb<  uJendu  of  tbat  Conn  i.  overcro.dsd,  .nd  tbe  Oo,- 
e„o,  b«  e..,c«d  .b.t  power  for  wm.  ,«ini  b,  .pp«i„,i„g  fo„ 
J».t,=«i  ./  ,h.  8„p„„e  Court  .0  .ft  u  Jodge.  of  tb.  Coirtof  App..^.' 

^io»,  I  thuik,  ,.  reth  .  prKtic.   known.     Evm  ,.  I.t.  u  1834  l.y 

^T.r,?'^.t  "°°"  °'  """"  '°  ■""  "  'Pl^'-tb.  la.t  o.c«io^ 
w«  Jnn.  17  of  lh.t  7,._in  1844  wb.o  tb.  »lel>r.ted  O'Connor  cue 
e.n>.  on  for  deci.ion  Km,  non-leg.!  p«r.  .ttempted  to  vot.  but  on 
the  Prfdent  of  tb.  ComteU  (Urd  WlnrnclUTe)  ..poetulMing,  tbe,  witb. 
drew.    Urd  Wbtmcliffe  »id,  .peiUting  of  tb.  Uw  Lord.,   'l.  pjint  of 

u!:^e.n,.^  ■  '^' ,"■'"}"•''  "»  CO""  •>'  AP!««1.  «»d  if  nobl;  lord, 
udeamed  .n  tb.  law  .hould  interfere  to  deeide  .ueb  ,u«tion.  by  their 
tote.  .n.te.d  of  leavmg  then,  to  tbe  decision  of  tb.  la.  lord.  I  ,er, 
mueb  fear  that  tbe  authority  of  tbi.  Hou«  a.  .  court  of  juati^  would 

(1883)  8  A.  C.  354,  the  »cond  Lord  Denman  attempted  to  vote  but 
h,.  ,ot.  ...  Ignored.     I  have  mjMlf  wen  bin.  sitting  in  tb,  Hou» 

aCt    :  '"'.'"  T-  ""  ■"""■■«  "'  "  ^■'■»'"'  "■"  •l-olu.e.y  n" 

attention  -„  pa.d  to  bin,-h.  ,a.  a  ,.ll.known  "eccentric"  who  died 

M  .h^°'lT  T'.^  "';  f"- '"'">■■  Courtenay.  Working'coB.tituti™ 
of  the  United  Kingdom,  London,  1901,  pp.  102,  103:  Hold.worth'. 
H,.tory  of  tbe  Engli.b  Law,  Vol.  1,  pp.  187,  188.  """•'"'rth  . 

h„M  P,"''°/.'l"'5'  '^•""^''-  ^'°'"'  <•'  "th"  of  our  omcer.  .ball 
It^r  °',"",<^""™"  "om^n,  pp.  76,  77  (XXIV,  14)  (we  mu.t 
not  be  too  critical  of  the  gr.mmar-"He.  .nper  grammaticam. -)     The 

■°rX\'T  "':  """  "•f""""  '"  °"«1'  "Crowner'..qu„t  la-.- 
I.  that  the  lawl"  .ay,  th.  Second  Clown  in  the  Churchyard  to  hi. 
earned  and  intention,  colleague.  "Ay  marry  L-t;  crown„>.Jum 
law,  ,n.wer.  the  wim  Fir,t  Clown  (Hamlet,  Act  V,  8c.  I)-  and  the 
haab  the  clown  made  of  a  famou.  caw  in  1562  (Halo,  v.  Petit  Plow 
den'.  Report,,  pp.  253  »,q.)  i.  not  much  wor«  than  Coronet  h^^. 
been  known  to  make  of  the  law  in  more  modern  time,. 

18  "No  officer  .hall  hereafter  put  anyone  to  hi,  law  on  hi.  own 
^mple  charge  without  credible  witneMe.  adduced  for  that  purpoK  ■■ 
Thom.on,  pp.  80,  81    (XXXVIII,  28).  purpoK. 

lawef  „'/""  ''°'"'°  "","  '"  "™^  "  ^P'isowd  or  di,p„«e«ed  or  out- 
lawed  or  in  any  way  molested,  nor  will  we  condemn  him  or  commit  him 


36 


to  priton  except  by  tbB  le^  jud^ent  of  hia  pten  or  bj  the  Ikw  of 
the  reftlm/'  ThomtoD,  pp.  83,  83  (XXXIX,  29).  (Perhmpi  "Mt  forth 
agaioit  him  or  kdi]  agftintt  him"  more  neaily  exprewet  the  mom  of 
the  original.) 

SO  On  the  introduction  into  Canada  in  1763  hj  Royal  Proclamation 
of  the  English  law  including  trial  hj  jury,  the  French  Canadians  ex- 
prmeed  their  astoniehment  at  the  English  preferring  to  leave  their 
right!  to  the  adjudication  of  tailors  and  ahoemakerg  rather  than  their 
judges,  and  we  in  Ontario  have  by  a  process  of  evolution  almost  reached 
the  same  mental  attitude. 

Id  an  Address  before  the  Illinois  Bar  Association,  May  28,  1914, 
I  stated  as  follows  on  this  matter:  "In  Ontario  there  are  %'ery  few 
cases  in  which  a  jury  is  of  right;  <n  most  instances  the  presiding  judge 
is  master  cf  the  situation,  he  may  try  a  case  with  or  without  a  jury 
as  seems  beat.  At  Toronto  in  1913,  in  the  lowest  court,  the  Division 
Court,  not  one  per  cent-  were  tried  with  a  jury  (the  official  report  for 
1913  shows  that  out  of  63,675  suits  only  117,  less  than  one-fifth  of  ooe 
per  cent,  were  tried  by  a  jury). 

"In  the  next  higher,  the  County  Court,  18%  were  tried  with  a 
jury,  and  in  the  Supreme  Court,  26%.  In  moat  of  these  cases  the 
jury  were  not  allowed  to  find  a  general  verdict  but  were  confined  to 
answering  certain  questions  of  fact  submitted  to  them  by  the  judge,  he 
reserving  everything  else  to  himself.  In  more  than  thirty  years*  expe- 
rience I  have  known  of  only  two  appeals  against  the  action  of  a  trial 
judge  in  striking  out  a  jury  notice — both  unsuccessful. 

"The  saving  of  time — and  wind — is  enormous.  The  opening  and 
closing  speeches  of  counsel  to  the  jury  and  the  charge  of  the  judge 
are  done  away;  in  argument  there  are  very  few  judges  who  care  to  be 
addressed  like  a  public  meeting  and  quite  as  few  who  are  influenced  by 
mere  oratory — all  indeerl  must  ex  officio  he  patient  with  the  tedious  and 
suffer  fools  gladly.  Vehement  aasertioD,  gross  personal  attacks  on  wit- 
nesses or  parties,  invective,  appeal  to  the  lower  part  of  our  nature,  are 
all  at  a  discount;  and  in  most  cases  justice  is  better  attained,  rights 
according  to  law  are  better  ensured.  Moreover,  during  the  course  of 
a  trial  a  %'ery  great  deal  of  time  ia  not  uncommonly  wasted  in  petty 
objections  to  evidence,  in  dwelling  upon  minor  and  almost  irrelevant 
matters  which  may  influence  the  jury,  wearisome  cross-examination  and 
reiteration,  etc.,  all  of  which  are  minimized  before  a  judge. 

' '  But  it  is  never  to  be  forgotten  that  the  courts  belong  to  the 
people,  and  the  wishes — even  the  prejudices — of  the  people  must  be 
borne  in  mind.     If  for  any  reason  the  body  of  the  people  were  to  coma 


37 

to  tlw  opinion  tbit  •  judge  trini  wh  not  •  jiut  trinl,  Jutici  would  not 
bo  utiifutoril;  adminiitered  if  llut  lum  of  trinI  wen  odoptod.  Ther. 
I  loave  tho  matter." 

In  erimiul  csiea  the  proportion  of  cam  tried  hj  a  jury  witli  ui  ia 
■mall,  althougli  in  most  caiea  the  accuKd  baa  the  option  to  be  tried  by 
a  jury  if  he  io  deeiraa;  in  murder  and  a  few  other  caaea,  a  jury  muat  try. 

Jury  trial  wns  once  and  for  long  a  real  bulwark  of  liberty,  par- 
ticularly in  caaea  of  alleged  offeneea  against  the  State  or  King:  whether 
It  is  still  the  Palladium  of  liberty  every  people  must  judge  for  itself. 
It  seems  to  me  that  if  our  liberty  gets  in  such  a  bad  way  aa  to  require 
a  Palladium,  the  Jury  system  will  no  more  save  it  than  the  original 
Palladium  saved  Troy.    Perhaps,  tub  judice  lis  est, 

»l"To  none  will  we  sell,  to  none  will  we  deny  or  delay  right  or 
juatice."    Thomson,  pp.  82,  93  (XL,  30). 

Ml  may  be  permitted  to  add  here  an  extract  from  the  Address 
nentioned  in  Note  20  supra.  Speaking  of  the  long  drawn  out  criminal 
tr.ils  reported  in  some  States,  I  said: 

"Is  all  this  good  for  the  Statef 

"Of  course,  if  the  people  really  want  that  sort  of  thing  they  must 
have  It;  but  do  tho  people  really  want  itT  Of  course  the  criminal 
classes,  the  potential  criminal,  the  lawyer  who  is  paid  by  the  length  of 
time  he  can  make  a  case  last  or  who  seeks  glory  from  technical  ingenuity 
or  florid  rhetoric,  the  yellow  and  near  yellow  paper  and  its  readers  all 
are  in  favor  of  it.  But  the  man  who  has  to  pay  for  it,  the  sober- 
minded  citiien  who  takes  an  interest  and  a  pride  in  his  country,  who 
18  jealoua  of  her  honor  and  reputation— what  of  him  I  and  is  he  not  to 
be  considered  t 

"If  a  criminal  trial  is  a  game,  weU  and  good.  The  fox  hunter 
who  was  expostulated  with  on  the  cruelty  of  his  sport  said,  "The  men 
like  it,  the  horses  like  it,  and  nobody  can  be  certain  that  the  fox  does 
not  like  it."  But  even  foihuntors  pay  for  their  game  out  of  their 
own  pocket,  and  if  a  fox  does  get  away  now  and  then,  there  is  no 
great  harm.  We  in  Canada  are  too  poor  to  be  willing  to  pay  for  such 
a  sport  and  too  busy  to  be  willing  to  waste  weeks  on  an  investigation 
for  which  days  or  even  hours  are  ample.  We  think  that  except  in  very 
grave  offences,  such  as  murder  and  the  like,  an  accused  should  have 
tho  option  to  be  tried  by  a  judge  and  without  delay,  instead  of  wailing 
for  a  jury  sittings.  If  one  charged  with  crime  be  desirous  of  trial  by 
jury  we  allow  him  a  copy  of  the  jury  panel  in  eufflcient  time  to  make 
mquiries  as  to  any  objection  to  the  jurymen,  and  when  a  trial  is  set 
wo  insist  on  it  being  proceeded  with,  with  due  diligence  and  reason- 
able  speed-    The  first  time  I  met  your  ex-president,  Mr.  Taft,  he  spoke 


38 

of  th«  i-.tolcnblc  delay  in  criinlii«l  triali  Id  th«  UniUd  BUtM.  I  toM 
him  ttat  ■  ihort  time  before,  I  had  gone  to  a  CaDSdiu  city  to  hold  the 
AwLMe  on  the  ume  dny  that  a  few  boure  further  along  the  eame  Hoe  of 
raU  but  acroee  the  international  boundary,  a  jodge  began  to  get  hie 
jury  in  a  murder  caae;  that  I  had  tried  fonr  criminal  eaaea  and  eefea 
eiTil  caaee,  and  waa  home  in  Toronto  before  my  American  brother  had 
half  hie  jnrr.  I  told  the  New  York  Bar  AMociation  that  in  my  thirty 
yeare'  experience  I  nerer  law  it  Uke  more  than  half  an  hour  to  get 
ft  jury.  Let  me  add  that  I  have  never  but  once  heard  a  propoaed  jury- 
man aiked  a  queetion  about  reading  newipapere,  forming  an  opinion, 
or  anything  elee.  I  have  never  known  even  a  murder  case  (except  one) 
Uke  fonr  daye;  very  few  Indeed  take  more  than  two;  none  tried  before 
me  haa  taken  aa  much  as  two  full  days;  and  medical  or  other  expert! 
are  not  allowed  to  drag  out  proceedings.  We  think  four  on  each  aide 
eoough  except  in  tpecial  circumaUncea  and  we  keep  theae  well  in  hand. ' ' 

29  "Nothing  it  to  be  given  or  taken  hereafter  for  the  Writ  of 
Inquiiition  of  life  or  limb;  but  it  ii  to  be  given  gratie  and  ia  not  to  be 
refuaed."     Thomson,  pp.  80,  81   (XXXVI,  26). 

S4B1ackatone  CommeDtariee,  Bk.  Ill,  pp.  128,  120,  jivea  a  fair 
account  of  thia  Writ  de  Odio  et  Aeii  (Atift  or  Athi4). 

24»ThomK>D,  pp.  66,  67  (II,  1):  M  to  "Belief"  aee  Blackatone 
Comm.,  Bk.  II,  pp.  65,  66. 

25  Thomson,  pp.  76,  77  (XXIII,  11). 

26  Thomson,  pp.  74,  75,  76,  77,  201,  202  (XX,  9). 
27Thomson,   pp.    76,    77    (XXV):    "All   Counties   and   Hundrede, 

TrithingB  and  Wapentakes  shall  be  at  the  ancient  rent,  without  any 
iucreaae,  excepting  in  our  Demeane  manors."  (This  is  somewhat  dif- 
ferently warded  in  McKechnie'e  work.) 

28  Thomson,  pp.  72,  73   (XIII). 

29  Thomson,  pp.  78,  79  (XXVIII,  18):  "No  Constable  or  other 
officer  of  ours  is  to  take  grain  or  other  goods  from  anyone  without  forth- 
with paying  cash  for  them  unless  the  vendor  willingly  gives  credit. ' ' 

The  Statute  (1660)  12  Car.  II,  c.  24,  finaUy  abolished  Purvey- 
ance and  many  other  feudal  absurdities:  but  the  credit  for  this  should 
be  given  to  the  Commonwealth  which  rendered  the  whole  feudal  system 
offensive  to  the  nation  at  large— the  influence  of  the  Commonwealth 
upon  English  legislation  and  law  generally  was  very  great,  and  in  every 
respect  beneficial— perhaps  this  influence  for  good  has  not  even  yet 
received  full  recognition. 

"Royal  Progresses"  continued  to  survive  for  a  time:  hut  now  the 
King  pays  for  what  he  gets  like  any  one  else. 


39 

so  Thorn*).,  pp.  78,  7»  (XXX,  20) :  "N,  Sberiff  or  oa,„  ol  our, 
or  U7  ou  .IM  i,  to  take  the  horx.  or  <.rt.  of  .n;  freemon  for  the 
purpoee  of  curjage  without  the  ton«int  of  the  laid  freeman." 

SlThoi„«,n,  pp.  72,  73   (XII,  32),    "No  acutage  or  aij  ahaJI  be 
™po«.d  ,0  oor  rraJoi  eac'epl  bjr  the  Commoo  Council  of  our  Kinjdom 
(There  are  t.Uiog  e.reption.  depending  upon  feudaj  law  and 
cuatom  but  of  no  moment  at  the  preaent  and  of  little  at  an;  time.) 

ajThla  ia,  of  courw,  the  origin  of  the  "conatilutional  rule"  that 
a  monej  vote.  mui>  originate  in  the  Houee  of  Commona-and  that  the 
other  Ilouae  cannot  amend  or  change  them.  In  Canada,  the  Briliah  North 
America  Act  (1887)  apecificall,  providea  that  "Bill,  for  approprialiog 
an),  part  of  the  public  revenue  or  for  impoaing  any  tax  or  import,  .hall 
originate  m  the  llouM  of  fommona."  Sec,  5.1.  Thi.  i.  intended  to 
cryatallii.  the  practice  at  Weatmin.ler  and  to  make  it  plain  that  the 
people  hold  the  purae-.lring..  Sometime,  for  convenience  bill,  involving 
public  eapenditurea  are  introduced  in  the  Canadian  Senate:  the  moner 
aection.  are  printed  in  the  bill  .o  a.  to  make  it  intelligible,  but  thea. 
aection.  are  alwny.  .truck  out  in  Committee.  When  the  bill  i.  „„,  up  to 
the  Common.,  thei«,  action,  are  in  red  ink  or  italic,  and  .applied  to  b, 
blank  and  inserted  in  the  Common.. 

While  by  Bule  of  the  Ilouie  of  Common,  copied  from  the  celebrated 
Kule  paaaed  by  the  Imperial  Ilouae  of  Common.,  July  30,  1878  (9  E 
Con,.  J.  23.5.  508)  when  the  IIouM  of  Lord,  rejected  the  Paper' Dutie. 
Bill,  the  "aid  and  auppllea  granted  to  Hi.  MaJMty  ...  are  the 
•ol.  gift  of  the  IIouK  of  Common.  .  .  .  and  .  .  .  .„ch  graat. 
...  are  not  alterable  by  the  Senate,"  inatancea  have  been  known 
not  many  in  number  and  "not  to  be  drawn  into  a  precedent,"  that  an' 
amendment  in  the  Senate  ha.  been  acquioaced  in  by  the  Common.-for 
example,  when  auch  a  coume  haa  been  found  neceaury  ao  aa  not  to  delay 
the  paaaage  of  a  bill    ■■  a  late  period  of  the  Kaiion. 

Th«  uaual  courae,  however,  ia  to  give  the  Senate  an  opportunity  of 
withdrawLDg   ita  unconatitutional   interference. 

Where  aa  in  the  United  Statea  both  Houaea  are  elaeted,  the  nocea- 
■ity  for  auch  •  cooatitutional  rule  i.  not  .o  manifeat. 

JS"We  will  not  hereafter  give  leave  to  anyone  to  OMCt  aida  from 
hia  freemen  except  to  ranmm  himaelf,  to  make  hia  eldeat  R>n  a  knight 
and  to  give  >  dowry  once  to  hia  eldeat  daughter:  and  not  even  theaa 
unleaa  the  amount  ia  reaaonable."  Tbomaon,  pp.  72,  73,  74,  73  (xv  6) 
It  waa  wholly  natural  that  the  Lord  should  be  redeemed  from  captivity 
and  hia  eldeat  Kn  ahould  be  made  a  wldier:  and  in  the  then  exi.ting 
condition  of  Engli.h  Mciety  (not  yet  wholly  ob«,lete)  .  dowry  wen' 
with  the  br.do:    but  the  tenant,  were  to  be  called  upon  to  pay  dowry 


40 


only  for  tbe  tIdMt  dtughter  uid  for  bar  only  oif*  (not  bc«tuM  a  divorce 
(Ourt  wu  then  flouriihiog  but  berauw  war  public  or  priTfttc  wu  Kt  one* 
the  liuiinni  and  tlu  recrMtion  of  a  gntlrman,  m  nid  on  tbe  S«ota 
or  Ibe  WeUb  or  even  ■  diugreetlile  neiftbbor  ku  tbe  riiiting  equirftleat 
of  ft  bunting  trip  to  tbe  Mtine  or  Cftstda  mooee  groundi  aad  tbe  mar- 
taJitj  wu  quite  u  high  m  tmonget  our  deer-buntrri). 

S4Tboiiuoo,  pp.  82,  S3  (XU,  31). 

SSTboniMD,  pp.  80,  81  (XXXV,  12):  "There  Bball  be  one  meuure 
of  wine  tbrougbout  tbe  whole  Kingdom  and  one  m^uur"  of  ale  and  one 
tneaeure  of  grain,  that  la  tbe  quarter  of  London,  and  one  breadtb  of 
djtd  cloth  nod  of  ruwet  and  of  balberjecti,  namclj,  two  elii  witbia 
tbe  lietH,    Alao  it  eball  be  the  ume  with  weight!  u  with  iieaauree." 

Thii  is  the  origin  of  the  "Wine  Meaiure, "  the  "Ale  or  Beer 
Mf:iit:ire,"  the  "Drj  Meaeure"  and  the  "Cloth  Meaaure, "  which  thow 
(it  my  age  will  remember  learning  at  ■chool.  The  "quarter"  is  eight 
buibeli,  Mill  used  in  the  Engliih  corn  market,  although  on  thii  Conti- 
nent we  alwaji  use  the  bushel.  Russets  were  an  inferior  kind  of  clotb 
dyed  a  dull  reddish  hue  with  bark  (not  unlike  the  "butternut"  of 
AmericaL  and  Canadisn  pioneera — I  bare  worn  it)  used  generallj  hj 
monks  and  rustin:  balberjects,  ba*. '  ^-?ets,  haubergrtt  or  haU  vtB,  a 
Terj  thick  and  coarse  mixed  English  .'i.r'-.  of  various  colors  (not  unlike 
our  coarse  tweeds) — tbe  precise  tn...  ;.Liig  does  not  s^em  to  be  clear. 
Bee  Murray's  New  English  Dietionary.  The  "ulna"  was  the  "Eng- 
lish ell"  of  45  inches:  the  "lists"  were  tbe  selvage  strips  (tbe  word 
is  used  by  Bbakejpeare  in  this  aense). 

It  is  unfortunate  tbat  the  provisions  of  this  section  were  not  put 
into  full  effect:  and  also  unfortunate  that  so  far  as  they  were  put  into 
effect,  tbe  simple  decimal  division  was  not  employed.  We  must  not 
despair  of  seeing  sneh  a  system  become  universal  in  commerce  as  it  is 
(almost)  universal  in  science. 

Sfl  Thomson,  pp.  82,  83  (XLII,  3.1).  The  claims  of  tbe  United 
States  and  Britain  at  tbe  outbreak  of  the  War  of  1812  are  discussed 
in  an  Address  by  Hon.  John  W.  Fost'.*r  at  tbe  meeting  in  Washington, 
December  16,  1910,  of  tbe  American  Society  for  the  Judicial  Settle- 
ment of  International  Disputes  a  d  Ut  a  series  of  articles  by  tbe  Editor, 
Col.  Asa  Bird  Gardiner  and  myself  in  the  "Army  and  Navy  Gaiette," 
New  York,  May  17,  June  7,  July  19,  Novemtwr  1  and  November  29, 
1913.  X  have  in  my  articles  quoted  tbe  authorities  rather  fully.  Web- 
ster's Works,  Vol.  V,  pp.  145-6,  540;  Vol.  VI,  p.  318;  Winsor,  Vol. 
VII,  pp.  483-488.    Mahan,  Vol.  I,  p.  3,  may  be  looked  at. 

87 Thomson,  pp.  68,  (19,  70,  71  (VII,  4;  VIII,  17;  XIII,  35). 


41 

UThoguon,  pp.  70,  71,  78,  73  (X,  34;  XI,  33), 

WThomwu,  pp.  79,  79  (XXVII,  1«) ;  "It  anr  (rwman  ilia  loin. 
Ul«,  bii  cfaatlil  proprrl;  ■bill  l«  dintribulnl  by  lh«  banili  of  bii  nnrril 
rtl«liT«  ftod  friends  UDdtr  the  auperviiioB  of  tb«  C'burcb,  MTing  to 
everyone  the  debte  whlrh  tbe  dereniied  (the  ■pelliDg  ihould  be  Me- 
funetui,'  Bi  McKefhoie  bu  it)  owed  biin." 

«OTbe  Statute  of  Wcitminelrr  n  >•  13  Edirerd  I,  r.  19,  In  1283i 
the  aabaequent  Btatute,  31  Edward  III,  St.  1,  c  11,  in  1337. 

llThomaon,  pp.  78,  7a  (XXXIII,  23>.  "Kjdelli"  are  said  to  ba 
Btill  in  u«  in  Devon  and  Comirall  on  the  ai^aroaat  under  tbe  name  of 
"Kettlea"  or  "  Kettleneta. "     Thomaon,  p.  214. 

«3TlioDiion,  pp.  84,  SS,  86,  87  (XI.VII,  47i  XLVIII,  .19). 

UTbomsoa,  pp.  8«,  87  (L,  40i  LI,  41).  "And  as  loon  aa  peace 
is  restored,  we  will  aenil  out  of  lie  kinitdum  nil  foreign  knights,  cro««- 
bowmen,  meroenarj  soldiera,  who  have  come  with  horses  and  arma  to 
th«  injury  of  tbe  kingdom."  (McKochnie  inserts  a  comma  between 
"servientcs"  and  "atipendarioa,"  making  both  worda  nouns,  he  trana- 
lates  "Serjeants  and  nieri'enary  soldiera" — I  think  incorrectly.) 

M  Tbomaon,  pp.  90,  91,  92,  93  (LVI,  44;  LVIII,  43;  LIX,  46). 


List  of  Addresses 

Dtllvarid  Mori 

The  Law  Academy  of  Philadelphia 

MteriBk.'} 

1«M  ?'"■"'.'"'  ^"^''"^ '"'■'"  8-  D»  Po""'"  (!)■ 

1W4  .lurincliition  of  the  Court* 

•182fi  «,°'<  "'"/::"''■;'  Stat..».,..lVt..r  8.  Du  Ponceau  (2j. 
1826  Study  of  the  Uw ,„«.p,,  Il„p|.i,„„„  (a,. 

;.f„  I^"     '"  "'  ""^  '"* '•='•»•«'■''  "■  Ingraham. 

1830  Praetiee  of  the  Law lohn  JI.  Scott 

1831  Early  History  of  the  Aead- 

1«ai  P ""T.  ■.■■  •  ■  ■,  ■; ^'*"  ^-  ^^  P"""*"- 

18J1  LouBtitutlonal    Law   of   the 

United    States John  K.  Kane 

1832  Study  of  the  Law William  Rawie 

1833  Study  of  the  Law Charles  IngersoU. 

18J4  Eulogium     upon     Antony 

183o  Profession  of  the  Law William  Kawle,  Jr. 

1838  Judicial  History  of  Penn- 

'y'™"'"    Peter  McCall. 

i>  'J  Tity     of     the     Legal 

"«'"   Job  K.  Tyson. 

^'^-■'  '••  ■■  "I  Foreign  Missions.  .Charles  J.  IngersoU    (4). 

of  Ph.l.delph,.  before  the  Tni.te,.  ,nd  Member  of  tb.  8o«letr  for 
the  Promotion  of  L<gsl  Knowledge,  Febniarj  21,  1821." 

(2)  "A    vuledirtor^    addieu    delivered   to   the    atudeiits    of    tbt 

!>.    oJ?"'  "'   '■'"'•*'P'''«  "  "»  'lo*-  of  tb.  Academical  ,„, 
on  the  22d  of  April,  1824."  ' 

(3)  Pnbllabed    in    tb.    "National    Oarette    and    Literarr    Bo.- 
later,"  Nonmber  22,  182«.  ' 

(4)  Publiabod  in  "PubUc  Ledger,"  October  25,  1843. 


44 

.1846  Practice    ot   Law    Pertain- 
"''      i„g     t.     the      Shenfla^.^^.^^^^  porter  (1). 

°®°'   ■  •  ■  V  \L'  Law  " . .  -WiUiam  A.  Porter. 
1R49  Profession  of  the  Ijaw.. 
1851  Want    of    Uniformity     m 

the   Commercial  UW  «      ^^  ^mi»„  Wallace. 

the  Different  States.^" 

1854  Lien   of   Debte   of   a   ^^'^^^^  ^.  Biddle. 

cedent    ' ' * 

1855  Common    Law     of       '""'Q^^ge  Sharswood. 

sylvania    ^^^  Harris  Brewster. 

1857  Practice  of  the  Law ^^^^^  ^   Woodward. 

1859  Law  and  Lawyers.... ^_- 

1860  Mining    Rights    in    fen     ^   p^^^^rton  Morns. 

sylvania    ; ' 

1861  Bights      and     Duties      o  ^   ^^^^^^  Brewster. 

Lawyers    ^^^^  Cadwalader  (2). 

•1862  Trial  by  Jury _••_ 

1863  Contribution  among    ler     ^^^^^  ^  ^.^^^^ 

Tenants     '"■,'"  -William  Henry  Kawle. 

1868  Equity  in  Pennsylvania^^Willunn 

1870  Law  Considered  as  a  r  ^^^^  ^^^^^^ 

gressivc    Science •_ 

1872  Modifications     of     Englis        ^^^f„i  Dwight. 

Law  in  Pennsylvania. . . .  ^-^^^^^  ^^^^^^  ^^^^^^ 

1874  Contracts  in  Rem. .  ■•.•■• 

1875  Separate  Use  in  Pennsy-^   ^^^  Mitchell. 

vania   i,      id 

1873  Q»»'^'^«""™  Adv^te.^WiUiam  A.  Porter. 

,i,er  ■"''i*^^^'°°"\  .  .James  T.  Mitchell. 
1879  Motions  and  Rules..-. 

"«°^tl;nLmr.    J.LClar.Hare.^^ 


45 

1893  Origin,  History  and  Ob- 
jects of  the  Law  Acad- 
emy of  Philadelphia George  Sharswood. 

1883  Beminiscences  of  the  Bar. .  William  S.  Peirce. 

1884  Law  of  Procedure  in  Cor- 

poration   Meetings George  M.  Dallas. 

1885  Article  XVI,  Section  VII, 

of    the    Constitution    of 

Pennsylvania   Bichard  C.  McMurtrie. 

1886  Codification    David  Dudley  Field. 

1887  Law   Reform Michael  Arnold. 

1888  Boad  to  Success Edward  M.  Paxson. 

1889  Profession  of  the  Law William  N.  Ashman. 

1893  Colonial  Cases  Samuel  W.  Pennypacker. 

1894  The  Fact  of  Marriage  and 

the  Limits  of  Divorce. . .  Chaa.  G.  Garrison. 

1895  Proposed  Changes  in  Penn- 

sylvania Practice John  B.  McPherson. 

1896  Expert  Testimony Gustav  A.  Endlich. 

1897  The  Jury John  Dean. 

1898  Special  Issues  and  General 

Issues Mayer  Sulzberger. 

1899  Constitutional   Government 

in  Theory  and  in  Prac- 
tice   John  Dalzell. 

1900  Reminiscences  of  the  Bench 

and  Bar Craig  Biddle. 

1901  Some  of  the  Conditions  of 

a  Lawyer's  Success J.  Hay  Brown. 

1902  The      Pennsylvania      Coal 

Company  v.  Sanderson,  a 

Study    Robert  W.  Archbald. 

1903  The  Practical  Conduct  of  a 

Jury  Trial Alex.  Simpson,  Jr. 

1904  The  Several  Modes  of  In- 

stituting Criminal  Pro- 
ceedings in  Pennsyl- 
vania   John  C.  Bell. 


46 

1905  The  Expansion  of  Equity 

1906  Tl!^  T^!°°"'l'"f '' ■^""«»  P-  Poifr. 

1906  The  Duties  of  the  Attorney 

General  of  Pennsylvania 

and   Practice   Pertaining 

1507  The  Present  Status  of  the 

1908  Th^?l'  ^'"''t'"' ■"""""  ^-  Porter. 

1508  The  Lawyer's  Duty  in  the 

Preservation  of  Civil  and 

lono  o  "*"«^™'  I-'l^rty Alton  B.  Parker 

1909  Some  of  the  Modem  De- 

velopments    of    Intema- 

1910  Deir,'  ^"^  •  V Charlemagne  Tower. 

i»I0  Democracy  —  Its      Fingi 

1911  jf^/i. Pe««r  S.  Groescup. 

i»l-i  The   Advent    of   Co-opera- 

„„  J  ?.'™.     ■••• Martin  A.  Knapp. 

1813  Initiative  and  Responsibility 

of    the    Eiecutive:      A 

Remedy     for    Inefficient 

191^  M  ^"'"^.f"''   Heniy  L.  Stimson. 

1915  Neutrality— Permanent  Dif- 

ficulties     and      Present 

iai«  p  ^°"'' Frederic  R,  Coudert 

1916  Powers  of  the  Executive. .  William  Howard  Taft 

1917  Magna  Carta wiUiam  Renwiok  Kddell. 


' 


